National Security and Overreach

We need government, because it is the only institution that can successfully perform certain tasks such as defense from external aggression, preservation of domestic order, and the broad enforcement of private property rights. The federal government was from the beginning strong yet limited but has, over the past two centuries, perpetually grown in size, scope, and power due in part to various crises such as economic depression, war, and domestic strife. What may have begun as a solution to a short-term urgent need has tended to result in an institutionalized budget item with a core of often vocal supporters (aka entrenched interests) who have come to rely on what was originally proposed as a temporary fix (Higgs, 2012). It is always easier to create a bureaucracy than to eliminate one, and programs often cost more than the amounts at which they are scored during the budget and reconciliation process. Some say these expansionary periods contribute to government overreach while others consider them to be a sign of a responsible government.

A responsible government operates within the confines of the Constitution and considers the greater interests of the nation in its budget priorities, strategies, and planning guidance. Characteristics of a responsible government include responsiveness to the public (aka “public interest”), conformance with notions of natural law, and adherence to precepts of fairness in the judicial realm (rule of law) (Cox, 2009). Unfortunately, all three branches of government regularly attempt to overreach. When the efforts are especially egregious, Congress may defund a program, the courts may enjoin the project pending further legal review, or the administration may rail against both Congress and the court, making claims of executive privilege and attempting to sway public opinion in its direction pending the next election.

Overreach implies the government has gone beyond its limit in terms of what is allowed in a given situation. Examples include operating outside of its jurisdiction or without enough statutory or other proper legal authority. Government overreach includes overregulation by federal agencies that may harm or threaten the economy and includes associated compliance costs. Overregulation stifles job creation and economic growth and grants unelected bureaucrats an inordinate amount of power over the private sector (Young, 2021). Overreach is especially pernicious, because it results in a shift of resources from the private to the public sector, a stagnant economy, an overly bureaucratic state, and ultimately collapse as productive members of society can no longer support a bloated unproductive sector.

With the checks and balances built into our government, myriad oversight committees, civil society watchdog groups, etc., one might wonder how overreach can be allowed to continue at a publicly funded organization. Overreach often has its roots in the administrative process when Congress writes a law providing general guidance but then leaves the implementation details to the agency of jurisdiction. Agency rules promulgated under the Administrative Procedures Act undergo a public comment process, but there is broad discretion in rule construction while agencies enjoy considerable deference in the courts. Critics argue that agencies issue rules so broad in their coverage that they can overreach the authority and expertise of the agency (Decker, 2016).

In the national defense arena, the Pentagon is often accused of overspending and misprioritizing budgets based on the “last war” instead of the “next war.” The Defense Department has regularly been implicated in overreach scenarios, particularly in the context of National Security Agency (a military entity) domestic surveillance activities. In many ways the DoD is an easy target for criticism because the disputed programs are classified and there is little opportunity for pushback against misinformation. Also, many critics feel at least some of the military’s largesse should be shifted to domestic priorities. In defense of the national security sector, at least the military is able to point to a specific provision in the Constitution (Article 1, Section 8) that justifies its existence—unlike most government entities.

 

References

Castelli, Christopher J. Lawmakers Slam DoD for Overreaching in Military Aid Proposals. Inside the Pentagon 24, no. 18 (2008): 1–15. http://www.jstor.org/stable/insipent.24.18.02.

Cox, Raymond W. Lessons in Framing Responsible Government. Public Administration Review 69, no. 5 (2009): 979-80.

Davis, Erin R., and Barbara A. Duncombe. Watching for Government Overreach. National Defense 102, no. 768 (2017): 7–7. https://www.jstor.org/stable/27021988.

Decker, Lisa A. Overreach in Agency Rulemaking: Judicial Pushback? Natural Resources & Environment 30, no. 4 (2016): 57–58. http://www.jstor.org/stable/44134731.

Higgs, Robert. Crisis and Leviathan: Critical Episodes in the Growth of the American Government. The Independent Institute (2012).

Segal, Stephanie, and Dylan Gerstel. Risks of Policy Overreach. Research Collaboration in an Era of Strategic Competition. Center for Strategic and International Studies (CSIS) (2019). http://www.jstor.org/stable/resrep22585.8.

Strang, Lee J. Originalism Best Explains Our Existing Constitutional Practice. In Originalism’s Promise: A Natural Law Account of the American Constitution, 161-220. Cambridge: Cambridge University Press (2019). doi:10.1017/9781108688093.004.

Young, Don. Government Overreach/Overregulation (2021). https://donyoung.house.gov/issues/issue/?IssueID=118707

United States Constitution. Article I, §8 (1789).

Rick Newbold Written by:

Mr. Newbold has been working in the national security field since 2003 and has been an IAPP-certified privacy professional since 2007. He holds a JD from Regent University, an MBA from Thunderbird School of Global Management, and an LL.M. in National Security Law from Georgetown. Mr. Newbold is currently pursuing his Ph.D. in Public Policy. He has contributed to several national-level documents and participates in a number of public policy-related working groups.

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