Regardless of Results, it Will Be Rule By Regulators

As of the time of this writing (10:00 CST, Thursday November 5, 2020) there has been no final resolution of the presidential election between Joe Biden and Donald Trump. However, regardless of who wins the presidency, most of the decisions that affect our lives for the next two years will be implemented by the regulatory bureaucracy, and not Congress.

It appears the Republicans will hold on to the U.S. Senate, and the Democrats will hold on the House of Representatives. This means the major priorities of either party are unlikely to come to fruition through legislative means. Instead, the winner of the presidency will set an army of bureaucrats to work crafting new regulations in the case of Joe Biden, or repealing previous regulations in the case of Donald Trump.

Excerpts from this article in City Journal does a very good job of explaining how the government will likely function for at least the next two years:

“The broader progressive reform agenda looks to be stalled. The Supreme Court will not be “packed” anytime soon with new justices. New states will not likely be added to the Union. The Green New Deal, the “public option” for federal health care, a sweeping federalization and restructuring of U.S. corporate governance—for now, these efforts are likely dead.

With Congress in a stalemate, the principal forces driving much government policy will likely remain the unelected: the executive-branch rulemakers and enforcers, the private litigators, and the “new antifederalists” who try to drive national policy from state and local perches. The high stakes of modern presidential politics owe much to the national legislature’s abdication of authority to these other forces—and to the assumption that executive control can at least indirectly control the rulemaking and enforcement levers.”

If Joe Biden is sworn in as our 46th president, he may be the first Democrat newly elected to the White House without his party controlling both houses of Congress since 1884, when Grover Cleveland defeated James Blaine.

Thus, the principal battlegrounds for shifting policy will fall back to the realm of the unelected, just as in the final six years of President Obama’s term. A Biden administration could be expected to reassert pressure on schools on issues of sex, sexuality, and gender identity; to revive aggressive environmental rulemaking; and to launch new civil rights investigations of local police departments. (Exit polls suggest that “racial inequality” was the top motivator for Biden voters, while “law and order” was the second-largest motivator for Trump supporters, after the economy.)

A divided Congress would be unlikely to block a prospective Biden team from using its rulemaking and enforcement powers to drive policy outcomes. Somewhat ironically, the best hope for forestalling further incursions on legislative authority by unelected members of the executive branch may rest with the life-tenured, unelected members of the third branch of government, the judiciary.

Of course, even the Supreme Court reining in the administrative state won’t heal America’s divisions—though it might help on the margins if it lowers the stakes of presidential elections. Americans are fundamentally divided in their visions of government, but that’s nothing new. The genius of our governing framework, which has endured almost a quarter-millennium, is that it allows us to resolve those differences peacefully—creating stability and prosperity for the long-term greater good. Our problems and divisions are real; but we must not forget our good fortune as Americans.

Congress has ceded far too much of its power to the regulatory agencies because letting someone else do the work is easy, and legislating with depth of knowledge necessary to make laws that make sense requires a lot of work. The accumulation of power in the executive branch has made the president far more important he or she was ever envisioned to be by many of the Founding Fathers.

Unfortunately, neither Republicans or Democrats use majorities they may hold to reassert the authority of Congress, and the ever-expanding power of the Imperial Presidency continues.