Now that the presidential election nears, many of us in the Catholic world are pondering how Catholic interests will make themselves heard in the contest. Yet in pondering these matters, many Catholics are coming to recognize that winning presidential elections on behalf of core Catholic values, such as the right to life, may not be enough to secure the protection of those values. The administrative state wields increasing power in America, so much so that its incursions into our lives can continue regardless of who occupies the White House.
Since administrative law is highly complex, I turned to Edward Mechmann, a highly respected legal expert, to fill me in on it, and what follows is a lively interview I conducted with him.
Mechmann is the director of Public Policy and the Director of Safe Environment for the Archdiocese of New York….
CWR: Recently at the Guild of Catholic Lawyers monthly talk in New York City, you shared with Guild members your concerns about the stealthy inroads against liberty—particularly religious liberty—that the administrative state is making. Can you share with our readers how administrative law has developed in recent years and why it is being resorted to by those who wish to roll back religious liberty?
Edward Mechmann: In modern times a tremendous amount of law-making authority has been delegated by legislatures to administrative agencies, and the courts have granted them so much discretion that the basic structure of our government has dramatically changed. Although most of these agencies are ostensibly located within the executive branch, their permanent staff often operate as if they are an independent fourth branch—this is the phenomenon often referred to as “the administrative state.”
The reach of these administrative agencies has exploded over the last few decades. There are over 180,000 pages of federal regulations, and tens of thousands more pages of state regulations. Agency budgets and staffing grow every year, as do the number of enforcement actions. These agencies are increasingly being staffed by “elite” graduates of law schools and colleges that are dominated by “progressive” professors and who naturally adopt that agenda for their own. The result is that more and more of the actions of administrative agencies reflect a liberal or “progressive” ideology, regardless of the positions of the elected officials who supposedly oversee them.
A particular threat has become apparent in recent years—the use of informal de facto rules. The best-known examples are two infamous “Dear Colleague” letters from the Obama administration education department, one of which imposed gender ideology on public schools, and the mandating of how college sexual misconduct cases would be handled. These informal rules don’t go through the official process for enacting regulations, but they are just as binding in practice as any law passed by Congress.
This legal context is very important because more and more Church institutions are becoming, in effect, branches of the government. Charitable and health care institutions and schools are becoming more dependent on government contracts for funding, or operating licenses for mere existence. This has left them extremely vulnerable to the actions of administrative agencies.
The result is that individuals and institutions are finding that many more of the important decisions in our nation are being made by the administrative state, and their lives are being affected in ways they never expected according to ideologies that they disagree with. All of these interactions between the public and the administrative state create vulnerable points at which life and religious liberty can be threatened.
The progressive bureaucratic elite who want to advance their agenda know very well that it is much easier to operate through the administrative state than passing laws in a legislature or going to court. Enacting a regulation—or issuing an informal “Dear Colleague” letter or executive order—is cheap and easy, and it has the same result. Those who want to coerce religious organizations into surrendering our beliefs know this very well. It took over a decade of legislative and court fights before the Supreme Court re-defined marriage, but it just takes the stroke of a pen to require religious organizations to recognize same-sex unions or gender identity, or face crippling fines.
The above comes from by Edward Short the Feb. 6 issue of Catholic World report.