A critical issue in the coming year and perhaps for the balance of the Obama administration will be the extent to which the President attempts to achieve by regulation what he cannot get through Congress. 

There are a variety of ongoing examples. For example, the President was unable to pass his preferred “cap and trade” legislation and is in the process of having the EPA attempt to implement much of it through administrative rule. It has become apparent that there were serious omissions and mistakes in the Affordable Care Act. Both the HSS and IRS have attempted to create by rule a law that Congress did pass, seeking to impose unauthorized user fees on insurers and tax penalties on employers.

The President, who increasingly acts as if no reasonable person could dispute his favored nostrums, will try to count this a virtue. He will say that he is attempting to address an urgent issue that is being ignored due to “politics” – which he seems to define as disagreement with whatever he wants to do.

There is a concern here which is independent of whatever we thing about ObamaCare and global warming. It has to do with how decisions get made.

Legal scholars have long remarked on the rise of the regulatory state and the extent to which law is not made by Congress but by administrative agencies supposedly acting pursuant to Congressional authority, i.e., with power “delegated” and, in theory, limited and defined by some law that Congress has passed.

To some extent, a modern state could not function without administrative rule-making. Not all of the particulars of a regulatory scheme can be specified in legislation and there may be circumstances in which the manner in which a law is implemented ought to be determined after administrative investigation into the relative merits of different ways of proceeding.

The problem is that, over the years, Congressional enactments have come to provide relatively little real guidance to administrative agencies and courts, in a misguided – and ironic – attempt to defer to the “democratic” process have gone too far in deferring to administrative agencies who act without substantial direction from the democratically elected legislature.

It has always surprised me that “clean government” types who become apoplectic over the campaign contributions of “special interests” are generally unconcerned about this growing administrative state. While open to public comment, administrative rule-making is technical and arcane and dominated by the regulated or those with a special interest in the subject of regulation. It is the ultimate insiders’ club.

Maybe “cap and trade” and other unlegislated requirements to further responses to climate change grounded in the restriction of economic activity rather than amelioration of its impacts are good ideas. Perhaps the various fees and other modifications or elaborations to the Affordable Health Care Act that are now being implemented by administrative fiat should have been passed by Congress.

But they weren’t. And those of us believe in the primacy of democratically elected institutions and the role of the legislature – as opposed to the executive – in making law should be concerned about how these measures come into being without regard to what we think about the merits.

We should be concerned because it is unclear, under current doctrine, that courts will check executive power in the way that they ought to. While several recent decisions, striking down unauthorized IRS licensing of tax preparers and the administration’s unlawful “recess” appointments to the National Labor Relations Board give me reason for hope, the best check on political overreach is the vigilance of the public.

Keep vigilant and watch this space for further developments.

Rick Esenberg is the founder and current President and General Counsel of the Wisconsin Institute for Law & Liberty.