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The Administrative State’s New Lease on Life in Washington

A year into the Biden administration, a characteristic has emerged that’s emblematic of its central approach to achieving its policy goals: The wholesale embrace and hypercultivation of the Administrative State.

Evidentiary exhibit A is the appointment of radical Leftist acolytes of Sens. Elizabeth Warren and Bernie Sanders to government positions — e.g., Lina Khan at the Federal Trade Commission, Rohit Chopra at the Consumer Financial Protection Bureau, Tim Wu at the White House.

Exhibit B is reckless, unbridled conduct in their official positions, intended to disrupt policies and processes. They employ chaos as a tactic for unilateral policy change. Their administrative actions effect policy while disregarding rules, established procedures and congressional authorization.

These violate the rule of law and threaten private property rights. Some examples illustrate the extremist, antidemocratic antics now in play.

Mischief marks the Federal Trade Commission under Chairwoman Khan. Her dervishlike approach includes launching questionable antitrust investigations into petroleum, rail, grocery, sugar and other economic sectors. She is disrupting mergers and acquisitions, including some that have cleared antitrust review or already been consummated.

Khan is decoupling the FTC from the objective, evidence-based consumer welfare standard of antitrust. She has acted to remove important guardrails such as bipartisan Section 5 enforcement guidelines and merger review guidance, and advanced partisan subpoena and investigatory authority and rulemaking power.

Rebuffed FOIA requests and a recent complaint charging the agency with ignoring a FOIA request would shed light on these troubling developments. And Khan’s only been at the FTC since the summer!

The FTC’s stockpiling of “zombie votes” demands scrutiny. As he was leaving the FTC and taking appointment at the CFPB following Senate confirmation, former FTC Commissioner Chopra cast votes on future matters of FTC business — though no longer effectively an FTC commissioner. Khan’s FTC has since counted several of Chopra’s zombie votes.

Zombie voting at the FTC has led to congressional pushback (here and here) and a request for investigation into the practice.

Chopra is aggressively encroaching on — and trying to displace — well established bank merger policy and process. Chopra’s attempted hostile takeover of the FDIC’s authority ranges far outside his ex officio role on the FDIC board.

Chopra aims to radicalize and politicize bank merger reviews in unprecedented ways. The bureaucratic, unelected aiders and abetters in the Biden administration at the CFPB, Federal Reserve, the Comptroller of the Currency and the Justice Department have ganged up on the FDIC’s legitimate authority over these matters.

A dozen Republican U.S. Senators in a sharply worded letter note, “Director Chopra and [expired holdover] Director [Martin} Gruenberg’s statement and actions make clear that they violated FDIC procedures with the apparent goal of usurping the powers of the chairman and inhibiting her ability to carry out her official duties and responsibilities.”

This Chopra et al. hostile takeover and end-run of legitimate policymaking is part and parcel of the Administrative State mentality. It’s pernicious. It’s contrary to limited government and the rule of law. It may be illegal.

Chopra’s, Khan’s, Gruenberg’s and other denizens of the Administrative State’s unbounded, radical misconduct under color of law deserves reversal, and they warrant removal from office.

Thus, the minions of administrative mischief erect and consolidate political power in administrative agencies. They circumvent the constitutional separation of powers. They undo the means of safeguarding against government’s overreach, which confines the realm of the unelected to clearly enumerated authorities. Leviathan increasingly escapes transparency and accountability to duly elected officials, namely the legislative branch, and to the electorate.

The strengthening of the Administrative State and the weakening of oversight, checks and balances, and accountability have shifted into overdrive in the past 11 months. The Administrative State’s newly empowered “true believers” are working overtime to consolidate administrative power by combining legislative, administrative and judicial powers, and dismantling the procedural norms, rules and tools of due process.

The Administrative State never works out well for ordered liberty and the rule of law. This direction will lead to much destruction, unnecessary disruption and antidemocratic effects for many American citizens, private enterprises and our nation. The current course promises tyrannical rule by unlimited government.

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