Michael Tavoliero: Administrative state controls nearly every aspect of our lives

Some readers might be wondering, why I have even brought up NLRB v. Jones & Laughlin Steel Corp in previous columns? The case was decided back in 1937. But since then, and because of it, billions of gallons of industrial-strength bureaucracy have poured into every corner of your businesses, homes, and lives, seeping through every crack of federal power and control. Why even think about it?

Well, perhaps the reason is that very federal intrusion into every single corner of your existence with probe-like penetration. The Administrative State is often called “The Swamp” for a reason.

The Federal Register lists a modest 439 federal agencies. That’s right, just a casual swarm of civil bureaucrats numbering close to 3 million personnel.

But here’s the kicker: That figure doesn’t even account for those charming “independent” agencies that operate without so much as a whisper of oversight from the Executive Branch or Congress. Oh, and let’s not forget the cozy public-private partnerships, where private entities pocket government cash and are somehow immune to constitutional scrutiny. Lovely, isn’t it?

All of these federal agencies issue regulations that carry the force of law.

And if that doesn’t make you feel all warm and fuzzy, head over to the U.S. Debt Clock. It’s a fun place, really. Your federal government is set to spend a modest $7.1 trillion in 2024. Care to guess whose money that is? Meanwhile, the national debt is ballooning past $35 trillion, with total U.S. debt creeping up on a tidy $102 trillion. But hey, don’t worry! The average tax revenue per U.S. citizen? A cool $14,600.

The U.S. Debt Clock notes the 2024 median income is a jaw-dropping $39,709—just a tiny bit up from $32,001 back in 2000. And healthcare? In 2024, it’ll cost you $15,217. In 2000, it was just $5,488. Ah, the good old days. College tuition? $26,674 now, versus $10,819 back in 2000. And don’t forget about those 12.9 million manufacturing jobs left in 2024. We had 17.1 million in 2000.

Of course, if you’re in the market for a house, buckle up. The median home cost in 2024 is $404,404. In 2000, you could have snagged one for $166,733. Oh, and new cars? A steal at $49,040 now, compared to a mere $22,474 in 2000.

Ladies and gentlemen, welcome to the emergency that no one’s quite panicking about yet. Our four largest budget items: Medicare/Medicaid—just a cool $1.8 trillion, Social Security—a breezy $1.48 trillion, Defense/War—$927 billion (because who doesn’t need to spend nearly a trillion on endless conflict?), and then, for the grand finale, Interest on Our Debt—an eye-watering $946 billion.

And here’s our wakeup call: While we drown in these expenses, the nation, its states, and its people have assets totaling $214 trillion, which would sound impressive if not for the fact that we also have over $219 trillion in unfunded liabilities. Yep, we owe more than we have. But don’t worry, it’s all under control—if by “control” you mean a spiraling abyss of financial chaos where the numbers no longer add up, and our debt is growing faster than our national assets. How’s that for comforting?

But here’s the real kicker: Alaska, that little microcosm of federal dependency, might want to take a glance at its own debt clock. Things aren’t looking too rosy.

But I digress. This all started with the NLRB decision in 1937 — the moment the U.S. Supreme Court decided it would play god with the Constitution, inventing new ways to amend it without bothering with actual amendments. NLRB kicked open the door for judicial pragmatism, setting the stage for federal tyranny in ways that would make even Madison and Hamilton weep.

Sure, they warned us about the dangers of majority tyranny in the Federalist Papers. They laid out checks and balances, separation of powers, all that good stuff. But not even in their wildest nightmares could they have predicted the federal government’s power grab, courtesy of five robed figures in D.C. in 1937. NLRB didn’t just twist the Constitution; it shattered the relationship between the states, the people, and the federal government. And we’ve been paying for it ever since.

NLRB with the augmentation of judicial activism paved the way for cases like Roe v. Wade, where the Court decided to make up the constitutional right to abortion on the fly. But then came Dobbs v. Jackson Women’s Health Organization, the potential light at the end of the tunnel—a decision that hints at pulling back federal overreach and, gasp, maybe even respecting state sovereignty. 

So, what do we have now? A federal government so bloated and so invasive, it’s hard to tell where it ends and we begin. The Constitution, once a firm limit on government power, is now more like a suggestion. But don’t worry—keep voting, and maybe one day we’ll get it all back. Maybe.

To overturn NLRB v. Jones & Laughlin Steel Corp and Wickard v. Filburn—much like how Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade—requires a strategic legal approach targeting the expansive use of the Commerce Clause and federal overreach.

Both NLRB and Wickard played pivotal roles in vastly increasing federal regulatory authority under the Commerce Clause, leading to decades of federal encroachment into areas traditionally reserved for states.

These rulings relied on a broad interpretation of the Commerce Clause, allowing Congress to regulate even local, intrastate activities if they had a “substantial effect” on interstate commerce. This view diverges from the framers’ original intent, which was to limit Congress’ regulatory powers to actual interstate commerce, not the internal affairs of states or individual citizens.

To reverse these decisions, the courts must embrace textualism and originalism, as demonstrated in Dobbs. The argument would focus on restoring the original understanding of the Commerce Clause, restricting federal regulation to explicit interstate transactions rather than activities like local labor disputes (NLRB) or personal agricultural production (Wickard).

The key to this legal strategy is challenging the “substantial effects” doctrine, which has been improperly used to expand federal power. Similar to Dobbs, which returned the issue of abortion to state legislatures, these cases must be brought forward to reassert the rights of states to regulate their own economies and labor systems without excessive federal interference.

As the Left has used legal advocacy and judicial rulings to achieve its goals, a conservative legal strategy requires lawyers and judges willing to argue for a stricter, more literal interpretation of the Constitution—one that limits federal authority to its explicitly enumerated powers. They must invoke the Tenth Amendment, which reserves powers not granted to the federal government for the states.

Just as Dobbs was the result of years of incremental legal challenges that gradually chipped away at Roe, overturning NLRB and Wickard would require a similar long-term approach. Advocates would begin with smaller cases questioning federal regulations on purely intrastate matters, building a body of rulings that challenge the reach of the Commerce Clause.

A coalition of states in favor of limiting federal power must also file amicus briefs to support these challenges. These states must argue for returning the rightful regulatory power to state governments, demonstrating that the federal government has overstepped its constitutional authority, does not efficiently or effectively regulate these powers and the states can regulate at better values to its people.

The success of this strategy depends on the current composition of the Supreme Court, which leans heavily toward originalism and textualism. Recent rulings, including Dobbs, suggest that the Court may be open to reconsidering long-standing precedents that deviate from the original constitutional framework.

Overturning NLRB and Wickard ultimately requires a return to the foundational principles of federalism. By following the blueprint laid by Dobbs, advocates can gradually dismantle the judicial precedents that have led to unchecked federal power. This process requires:

• Refocusing the interpretation of the Commerce Clause to its original, narrower scope.
• Incremental legal challenges that build a case for overturning these precedents.
• Continued efforts to dismantle the Chevron doctrine to limit bureaucratic overreach.
• An emphasis on originalist and textualist interpretations in court rulings.

The goal is to restore the balance of power between the federal government and the states, ensuring that federal authority is exercised only where explicitly permitted by the Constitution. By doing so, states would regain autonomy over their own economies, businesses, and personal affairs, aligning governance with the vision of the framers.

Michael Tavoliero is a senior contributor at Must Read Alaska.