Modern conservatism is closely linked to decentralization. Free markets are by definition decentralized markets, and the extraordinary growth of the United States economy over the last 200 years is a testament to the creative power of individuals when they are free to respond to market demands.

Also important to modern conservatism is the decentralization of government itself, allowing decisions to be made close to the communities they affect, while also encouraging policy competition and experimentation.

Both these forms of decentralization, however, are now increasingly challenged by federal administrative agencies, which are a growing force for the suppression of diversity among individuals, businesses, and state and local governments. Although the Constitution places the federal legislative power in Congress, it is now increasingly — and alarmingly — flowing to administrative agencies that, unlike Congress, are not directly accountable to the public affected by their decisions.

Unless we can find a solution to this problem — a way to curb and cabin the discretionary power of administrative agencies — decentralization and individual self-determination will eventually be brought to an end. The diversity of our society and the innovativeness of the U.S. economy will gradually come under the pervasive control of a vast bureaucracy, and an essential element of American exceptionalism will be irretrievably lost.

THE ADMINISTRATIVE STATE TODAY

In his magisterial work Is Administrative Law Unlawful?, Philip Hamburger observed that

Administrative law found a place in American government when it still could be believed that administrative regulations and adjudications would merely be exceptions within the traditional constitutional structure….Times have changed, however, and so too has administrative law. No system of power is entirely stable, and the exception has swallowed the rule. Administrative law has by now dwarfed statutory law and has become the federal government’s pervasive mode of dealing with the public. Therefore, rather than merely a means of completing the work of Congress and the courts at the margins, administrative power has become central.

Similarly, in a comprehensive essay titled “Can the Administrative State be Tamed?,” Christopher DeMuth traced the growth of executive power through the treatment of administrative decisions in the courts. Expansion of administrative power, he notes, began in the 1970s and was assisted by the widespread judicial acceptance of deference to agencies’ interpretations of the scope of their own authority. But the growth curve turned sharply upward in 2008, with the arrival of the Obama administration. In the Obama years, DeMuth observes, the expansion of executive power essentially became lawless: “[T]he most dramatic departure in executive government in the years following 2008 was sheer unilateralism — executive agencies, and frequently President Obama personally, effecting major policy changes in defiance of reasonably clear statutory requirements, often on grounds that Congress had failed to enact them.”

The 2016 election seems destined to leave us on the same course, no matter which candidate wins. The Democratic Party’s candidate seems wedded to expanding Obama’s aggressive administrative agenda, and the Republican candidate does not appear to understand or accept constitutional, treaty, or statutory restrictions on the authority of the president…. read more here: http://www.nationalaffairs.com/publications/detail/decentralization-deference-and-the-administrative-state