The major questions doctrine: Using the administrative state to mask centralization of executive power.

It is 18 September 2023, and we are less than 16 weeks away from the 15 January 2024 Iowa caucuses. With 7.2% of national GOP voters favoring Vivek Ramaswamy, a technology company entrepreneur, for the GOP nomination, he trails significantly Messrs. Donald Trump (56.6%) and Ron DeSantis (12.7%).

Mr Ramaswamy has a lot of work to do in Iowa where not only does he trail Trump and DeSantis, but he also trails U.S. Senator Tim Scott, Republican of South Carolina, and Ambassador Nikki Haley, former Republican governor of South Carolina.

Last week, Mr Ramaswamy employed a tactic to put him in a strategic position designed, it appears, to garner right of center and libertarian leaning votes in the Republican primaries. The tactic was a speech on domestic policy presenting the narrative that the administrative state was a threat to American democracy and that as president, one of Mr Ramaswamy’s first executive moves would be to eliminate a significant portion of the federal government work force; a majority of federal regulations; and eliminate a number of federal independent agencies in the process.

According to Mr Ramaswamy, he would apply the major questions doctrine to unilaterally rescind any regulation where it appears that, given the regulation’s economic impact, that Congress did not give an agency the explicit and specific authorization to implement a regulation.

Mr Ramaswamy argues that most of these “alphabet agencies” i.e., FCC (Federal Communications Commission), FTC (Federal Trade Commission); and even the FBI (Federal Bureau of Investigation) would fail to exist upon application of the major questions doctrine.

And while not calling for a complete elimination of the Board of Governors of the Federal Reserve System, Mr Ramaswamy appears to endorse replacing the Federal Reserve System’s dual mandate of stable prices and full employment with a single mandate of dollar stability where the U.S. currency would be backed by a basket made up of gold, silver, copper, and/or agricultural commodities.

There is the consistent fear held by those occupying the right of the political spectrum that the United States is abandoning a political system controlled by the electorate (executive, legislative, judiciary), and being replaced by boards, commissions, and single-headed organizations that hold the belief that American society should be managed by impartial, scientific technocrats. These technocrats are fundamentally skeptical of people governing themselves.

Mr Ramaswamy is, on the surface, in the “we the people” camp. He asserts that the administrative state is wresting power away from the executive power, a power pursuant to the U.S. Constitution that has been vested in the President of the United States.

Tactic wise, attacking the administrative state as a way to win votes is a weak move because it is a nuanced subject. To paraphrase Ben Affleck’s ‘Pierre d’Alencon’ from “The Last Duel”, the common man does not have the capacity for nuance. I would say, more accurately and fairly, that the common man during inflationary times is not prioritizing the organizational structure of political power over the ability to put food on the table and keep a roof over his head.

Channeling Hart Bochner’s ‘Ellis’ from “Die Hard”: “Vivek. Buby. Bringing up the Deep State ain’t your white knight.”

Another irony is that by centralizing more power in the Executive, Mr Ramaswamy makes the Office of the President look increasingly less democratic. On the contrary, the administrative state, albeit unelected, is severely limited by administrative law. The administrative state avoids the existential threat of politics by adhering to a rule of law, in particular the Administrative Procedures Act which has been around in its current format since 1946.

Yes, while the experts that lurk in these agencies believe they can improve society and that individual freedom should be limited to the extent that an individual can manage such freedom, the policy choices made by the administrative state is limited by the very statutes written by congressional representatives sent to Washington by the very individuals that can’t be trusted to settle disputes or govern themselves.

The irony ….

What would aid Mr Ramaswamy’s pursuit of bringing the power back to the Executive is the narrative that America needs a strong man to redefine or reconstruct America in the face of still distant but rapidly approaching danger to America’s trade position. An increasingly right-leaning western Europe and threats to the strength of the US currency from Asia and eastern Europe may call for America to seek a dark knight.

Rather than calling attention to himself by eliminating administrative agencies, the next President could maintain the facade of an executive that democratically represents Americans by distributing power to independent agencies. In the process, a president following this tactic can focus his constitutionally limited powers on the issues I mentioned above.

Distract. Don’t attract.

Besides, the Presidency was never designed to be an office of the people. The President is not directly elected by the people and the office represents, at least symbolically, the State.

Time for the State to tap Mr Ramaswamy on the shoulder and say, “chill.”

Alton Drew

18 September 2023

For more of my insights on political economy, purchase my book at amazon.com/author/altondrew.