PERSPECTIVE FROM THE 19^TH HOLE: This is the title I chose for my personal blog, which is meant to give me an outlet for one of my favorite crafts – writing – plus use an image from my favorite sport, golf. Out of college, my first job was as a reporter for the Daily Astorian in Astoria, Oregon, and I went on from there to practice writing in all of my professional positions, including as a Congressional press secretary in Washington, D.C., an Oregon state government manager in Salem and Portland, press secretary for Oregon’s last Republican governor (Vic Atiyeh), and a private sector lobbyist. This blog also allows me to link another favorite pastime – politics and the art of developing public policy – to what I write.

As a former Executive Branch official in Oregon, it may seem strange for me to raise questions about whether administrative officials go too far.

Still, I do, if only because of actions, especially during the Obama Administration, when the former president specifically and intentionally went around Congress to work his will.

Defenders of Obama no doubt will say he circumvented Congress because it would not work with him and, to a degree, they are right. But, for a person such as Obama who came into office saying he would lead a new era of cooperation with the Legislative Branch, his conduct was over-the-top.

It also would be possible to contend that, before long, so will President Donald Trump’s conduct be beyond the pale of executive-legislative cooperation. It probably is already there.

I was reminded of all of this by a Wall Street Journal piece last weekend by editorial writer John Tierney who reviewed a book, Is Administrative Law Unlawful, by constitutional scholar Phillip Hamburger.

Here is an excerpt of what Tierney wrote:

“Sometimes called the regulatory state or the deep state, it is a government within the government, run by the president and the dozens of federal agencies that assume powers once claimed only by kings. In place of royal decrees, they issue rules and send out ‘guidance’ letters like the one from an Education Department official in 2011 that stripped college students of due process when accused of sexual misconduct.

“Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution, says Hamburger, 60, the constitutional scholar.

I add that what happens in the Nation’s Capitol happens in Oregon, as well.

President Obama was perhaps the offender. He openly boasted of his intention to bypass Congress:

“I’ve got a pen and I’ve got a phone,” he said.

Unable to persuade a Congress controlled by his own party to regulate carbon dioxide, Obama did it himself in 2009 by having the Environmental Protection Agency declare it a pollutant covered by a decades-old law.

Similarly, the Title IX legislation passed in 1972 was intended mainly to protect women in higher education from employment discrimination. Under Obama, Education Department bureaucrats used it to issue orders about bathrooms for transgender students at public schools and to mandate campus tribunals to adjudicate sexual misconduct—including “verbal misconduct,” or speech.

Going back to my own experience in the Executive Branch in Oregon, now more than 25 years ago, I remember that, at the then-Department of Human Resources, we set about to propose administrative rules that would, admittedly, go beyond specific legislative authority.

We did so because we wanted to avoid the hassle of dealing with legislators who would not have the time or inclination to get into the details of complicated public policy.

Was that right? No, I answer today.

By contrast, in the Governor’s Office where I served as press secretary to Oregon Governor Vic Atiyeh, we respected the legislative process, perhaps, at least in part, because the governor had come out of that process to win the state’s highest political office.

In a more recent example, Republican members of the Oregon Senate Rules Committee raised questions about Governor Kate Brown’s appointment of three new members to the Environmental Quality Commission.

The Rs said that, while they appreciated the qualifications of the three nominees, they understood the governor was intending to go around the legislature to enact new air pollution regulations. They wanted legislative action first to set the parameters of administrative action.

In all of this, are there ways to curb administrative usurpation of legislative prerogatives?

Yes, according to the Wall Street Journal writer, Mr. Tierney.

One would be to make government officials financially accountable for their excesses, as they were in the 18th and 19th centuries, when they could be sued individually for damages. Today, they’re protected thanks to “qualified immunity,” a doctrine Mr. Hamburger, the university scholar, thinks should be narrowed, even though there is almost no chance administrative officials, in Washington, D.C. or Oregon, will be held to such an account.

“One does have to worry about frivolous lawsuits against government officers who have to make quick decisions in the field, like police officers,” Hamburger admits. “But someone sitting behind a desk at the EPA or the Securities and Exchange Commission has plenty of time to consult lawyers before acting. There’s no reason to give them qualified immunity. They’ll be more careful not to exceed their constitutional authority if they have to weigh the risk of losing their own money.”

Another way to restrain agencies would be to require them to submit new rules to Congress for approval instead of imposing them by fiat. The president of the governor here could also order at least some agencies to resolve disputes in regular courts instead of using administrative judges, who are agency employees. Meanwhile, Congress could reclaim its legislative power by going through regulations, agency by agency, and deciding which ones to enact into law.

Finally, being able to recognize administrative over-reach is an inexact science. Often, most of us are too occupied with our every day issues to pay enough attention, unless, as in the Obama era, the excesses were so, well, excessive.

“Administrative power is like off-road driving,” Hamburger says. “It’s exhilarating to operate off-road when you’re in the driver’s seat, but it’s a little unnerving for everyone else.”