In an April 24, 2012 New York Times Magazine article entitled, “Earth to Ben Bernanke”  Paul Krugman writes, “Bernanke’s big retreat from F.D.R.-like resolve happened way back in 2003, less than a year after he arrived at the Fed. That month, a Fed staff report rejected many of the ideas Bernanke previously supported — and ever since, Bernanke has spoken only of limited responses to the problem of the zero lower bound.”  By “problem of the zero lower bound” Krugman means:

‘Right now, the Fed believes that it’s facing a weak economy and subdued inflation, a situation in which it would ordinarily cut interest rates. The problem is that rates can’t be cut further. When the recession began in 2007, the Fed started slashing short-term interest rates until November 2008, when they bottomed out near zero, where they remain to this day. And that was as far as the Fed could go, because (some narrow technical exceptions aside) interest rates can’t go lower. Investors won’t buy bonds if they can get a better return simply by putting a bunch of $100 bills in a safe. In other words, the Fed hit what’s known in economic jargon as the zero lower bound (or, alternatively, became stuck in a liquidity trap). The tool the Fed usually fights recessions with had reached the limits of its usefulness.’

Krugman’s solution, it appears, is to cut short-term interest rates and print money in the hope of stimulating private borrowing and spending.  And Krugman believes that such intervention requires F.D.R.-like resolve.  According to the Italian philosopher Georgio Agamben, writing on the concept of the state of exception, “from the constitutional standpoint, the New Deal was realized by delegating to the president (through a series of statutes culminating in the National Recovery Act of June 16, 1933) an unlimited power to regulate and control every aspect of the economic life of the country – a fact that is in perfect conformity with the already mentioned parallelism between military and economic emergencies that characterizes the politics of the twentieth century.”  In other words, from a philosophical standpoint, Krugman’s argument is one in which Bernanke should execute the same kind of authority in fixing the economy that a commander-in-chief would exercise in times of war.  Independent of whether Krugman’s solution is ideal from an economic standpoint, from a legal standpoint, Krugman’s rhetoric signals a mentality in which wide-scale economic regulation no longer becomes the kind of executive action taken in exceptional cases but instead the norm of economic policy.

But regulation does not occur in a vacuum;  implicit within, say, the Affordable Care Act is a concomitant institutional aggrandizement of the Department of Health and Human Services as well as the Internal Revenue Service, both of which gain more authority in spending, rulemaking and enforcement.  Indeed the Dodd-Frank regulations entailed the establishment of the Consumer Financial Protection Bureau.  The Troubled Asset Relief Program entailed an Inspector General office and congressional appropriations that funded investigations (the Financial Crisis Inquiry Commission) and, eventually, spending (the Stimulus plan).  Economic intervention through regulation no longer takes place at the margin, or in the exceptional case, but instead has become the norm – one synonymous with administrative aggrandizement and the expansion of executive power. This has enormous consequences for transparency and accountability of the Executive Branch as the bureaucrats of the Federal Reserve or Consumer Financial Protection Bureau are unelected and any check on their spending comes after-the-fact, when policies and regulations have passed and any form of oversight will fail to retroactively remedy the damage regulatory regimes have done to job creation and capital formation in the market.  The American founders conceived of the normal state of American constitutionalism to be one of limited government.  Now this notion has become an exception relegated to the norm of administrative aggrandizement and, worse, overreach in the form of interventionist, enforcement-based (as opposed to cooperative) regulatory schemes and spending buttressed by an unchecked, unaccountable bureaucracy. Such executive power in the United States has been traditionally justified in times of war where martial law becomes a necessity for purposes both exceptional and expedient.  Constitutional rights to due process, habeas review, and the Third Amendment prohibition against the quartering of soldiers in “any house, without the consent of the owner” were seen as permanent limits against executive aggrandizement during times of war where national defense may need to subrogate other rights.  And yet now the bureaucrats and their regulations have become quartered within our savings and wealth.  And without our consent.

By Dan Epstein, executive director of Cause of Action