The “Doctor for Liberty” on Opioid Abuse, Harm Reduction, and ObamaCare
2019-07-14 · Guest: John Marini (University of Nevada, Reno) · 51:15
The Rise and Impact of the Administrative State
Bob Zadek interviews Professor John Marini of the University of Nevada, Reno, regarding his book Unmasking the Administrative State. They discuss the historical shift from a government of limited, enumerated powers to a centralized bureaucracy run by unelected experts, and how this evolution has eroded individual autonomy and the rule of law.
Topics: Administrative State, Bureaucracy, Rule of Law, Separation of Powers, Constitutionalism, Expertise, Centralization, John Marini, Donald Trump, Public Choice Theory
Speakers: Bob Zadek: Host John Marini: Professor of Political Science, University of Nevada, Reno
The Rise of the Nanny State [00:17]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio—12 years and counting, I proudly announce. Thank you so much for listening this morning. We are always the show of ideas, never, ever the show of attitude.
Think back to your days in grade school, high school, perhaps even college. The class of student who was most reviled, most annoying, most irritating, were the know-it-alls, the nannies, the scolds—the people who would always offer unsolicited advice about how you should conduct your affairs. In fact, the word “should” was used more than any other verb in their vocabulary. You should do this, should do that.
And here we are in 2019, in a country, in a world where individuals have more tools than ever before in the human experience to manage one’s life competently, with maximum freedom, and with confidence that most decisions you make will be the right decision, or at least you will have the tools to make the right decision. As that trend continues and continues and continues to make decision-making at the individual level easier and more effective, that trend is crashing right into the governmental trend, which is increasingly in our country—perhaps in the world, but certainly in our country—more and more of the decision-making which we are becoming more and more competent to make, we are being denied the power to make those decisions, and government is making the decisions for us.
These trends are crashing into each other. One is the anathema to the other. They should not be coexisting, but they are. And we are now governed by a government of experts—self-appointed to be sure, people we don’t even select specifically, we only select by living here—and those experts make all these decisions for us, denying us the freedom to run our lives and denying us the freedom to even pick who’s going to be running our lives.
Thus, we are talking this morning about the growing intrusiveness and danger to the American way of governing, the danger posed by the bureaucracy—the fourth branch of government, not created by the Constitution, created just like a weed which grows and grows and grows and cannot be stopped. To help us understand how we got here and hopefully how we stem the tide, I’m happy to welcome to the show Professor John Marini. John is a professor of political science—and the words “political science” need some discussion, we will have it in a moment—he’s a professor of political science at the University of Nevada in Reno and has recently written Unmasking the Administrative State, where John is sharing with us a lifetime of study of how the administrative state got here, how it undermines the core democratic principles of us being able to control our life through the ballot box. And as you will see, as John will explain, as a result of the growth in the administrative state, the very electoral process by which we elect those people who will, dare I say, govern us, that becomes an empty, vacuous life because we are not electing people who will govern us. The people who are to govern us operate behind the scenes. We never get to meet them, have contact with them, until they try to control our lives. John, welcome to the show this morning.
John Marini: Thank you, Bob.
Defining the Administrative State [01:41]
Bob Zadek: Now John, you have written Unmasking the Administrative State. Now, there has been some attention given to the fact that we as a country are over—perhaps some commentators say over-regulated—and that has been more or less, at least that phrase is kind of accepted as true. But what have you discovered about the depth of the control of the administrative state, and why is that a threat—and I’m going to use strong words, but you will support them—why is that a threat to the very democratic process?
John Marini: Well, I think the reason is that the so-called administrative state bureaucracy, whatever you want to call it, it substitutes the rule of expert knowledge for the rule of citizen participation and the rule really of institutions in civil society that are not governmental that order the way people live and interact in their communities. So, it’s a very pervasive phenomenon because it establishes a kind of control over the activities that people participate in. It formalizes everything. And it takes, in a certain way, it takes the humanity out of the way things get done. I mean, one of the purposes of bureaucracy really is to take the human out and establish the rational as the way in which decisions are made. And that rational, of course, is meant to be without any human element. That’s been one of the ongoing requirements of bureaucratic rule: that it be established with the view that cases, not people, are how you understand the phenomenon. And so it’s scientific in a certain way, I mean, at least in the way in which these structures of organization—and by the way, these structures are not merely in the governmental segment of the world; they’re in almost all of the largest kinds of structures that organize human activity. So, a huge structure like the Defense Department or a large corporation operates almost as bureaucratically as any governmental structure.
As more of these activities are taken over by these structures, of course, it makes the individual, the persons in society, the social units, the families, the associations, whatever it was that was non-governmental that we would call civil society associations, become increasingly diminished. And it’s very hard now to distinguish or to find even a social structure, including the family, that has not been in some ways endangered by these rational bureaucratic structures, because so much of the authority of government and control is put into the hands of these structures and taken out of the hands of the people.
The Shift from Prudence to Expertise [03:01]
Bob Zadek: Now John, there’s one interesting observation. If we start with the basics and start with history of our country, the tasks given to government in the Constitution—a government of limited, enumerated powers—the tasks given to government didn’t require expertise at all. Virtually anybody could fulfill the original goal of government: protect liberty, protect private property, and allow individuals to flourish. You do not need to be a scientist—and respectfully, a political scientist or a science scientist—to do that. Just leave people alone. So what happens is, number one, I think—but I’ll ask you to comment if you would—number one, government undertakes more and more what were historically non-governmental functions. And once they undertake these functions, now they have to build a system to figure out how to do it, how to carry out these roles somewhat competently. So the failed process starts with government biting off more than it’s supposed to be chewing and then figuring out how to do it. The encroachment of governmental powers that started the need for experts.
John Marini: Well, yeah, I think that’s right. Every government has to be administered. At the time of the American founding, of course, administration is not mentioned at all in the Constitution because it was thought to be a practical activity, as you mentioned, and it can be undertaken by people who simply have experience in a particular area. Let’s say if you have the military, which in a certain way is a prototype of bureaucracy. In the military, you want people that know about how to conduct the art of warfare, and so you get people that have experience. But the authority for that is not science. It’s not rationality. It’s human judgment. It’s human prudence. It’s the way in which humans adapt to the practical situation they find themselves in.
So, there’s no question that every government that has ever existed has had an administrative component. But it’s only in modern times that the administrative component is established on the ground of an authority that replaces the political judgment, the practical judgment, the judgment that human beings make as citizens, really. So, it’s a different kind of activity. But once that activity begins—in other words, once you start establishing administration on the ground of rational authority, scientific authority—then of course you have to displace those social institutions even in civil society that had existed that were based on an authority that was not rational.
The Displacement of Social Institutions [04:30]
John Marini: It was perhaps authority that derived from tradition. It was authority that derived from the authority of traditional authority, social authority, parental authority. There are all kinds of authority in human life that’s not governmental prior to the rational authority. And that authority is established in these institutions that arise organically in civil society, the most basic of which, of course, has been the family. But you notice when you substitute rational authority for social authority, then how the family is even judged is on the basis of scientific authority. So the authority of the social scientist, the authority of the psychologist, really begins to replace even parental authority. So it’s very hard then to maintain those social institutions that were dependent upon that authority that derived from the prior kind of authority.
So, this is not merely a kind of transformation of going from government as establishing the conditions of human freedom—in other words, allowing a great deal of autonomy in civil society—this goes to the heart of transforming, controlling civil society. And it’s taken a number of years to do that. I mean, it’s taken much of the 20th century was occupied with this kind of transformation in these institutions and then, of course, in the way in which the authority of these structures come to permeate the whole of the society and in the end, in a certain way, establish the primary authority in the expertise itself, regardless of what the citizens’ views are, regardless of how the political situation, which established the conditions say for the protection of rights, property, freedom—all of those things kind of disappear as secondary, really, if considered at all.
Bob Zadek: And I think, John, what you’re really saying is there has been a devolution in decision-making power from the civic institutions—the family, the church, voluntary associations—there has been a devolution in power from those civic organizations, including the family of course, to government. And what it means is not only is the decision-making, but the power has left, so that to the extent that governmental power, bureaucratic power grows, individual power, individual autonomy must recede. They both can’t coexist. There is a crash of two power structures. And I just ask our audience, which power structure instinctively seems the better for you? The power over yourself with access to unbelievable amounts of information to make the competent decision? Do you want the power to make your own decisions, or are you willing to just allow government to quietly—but like ratcheting, ratcheting, ratcheting, never goes back—government assume that power at the expense of your individual power? It’s not a coexistence of two power circles, of two power structures; it’s one recedes and one grows. And it’s very insidious, and it happens, as Madison observed, in tiny increments, but never goes back. So isn’t it not only that the bureaucracy is assuming more and more power, but we are losing incrementally individual power?
Centralization and the Global Order [05:41]
John Marini: No, I think that’s absolutely right. And not only do we lose this power in the sense that it moves away from the individual or even the local community or the state, it becomes centralized. When you get a centralized administrative structure like we have in Washington, of course, then everything in the whole of the country is moving toward the decision-making process being made—the highest level decision-making process being made in one place. So there’s no politics really that occurs in any place but the center.
The problem in our time, as we can see, these structures, these rational structures, are considered also universal structures. So the tendency is to push them at even higher level, to move from say Washington as the center of the way in which the political decision-making is done to a global order. And this is a tendency—you can see it in Europe in the way in which the European Union has usurped and in a sense taken over the role of the nation-state. So in America, it’s harder for us to do this because the Constitution still imposes structural limits on what government can do. And it also is possible politically to mobilize majorities and to mobilize the people if you can see the problem in a way that they can begin to defend themselves against these centralizing tendencies.
The problem is, once power is centralized in Washington and people go to Washington with the view to solving our problems there, you get an establishment in Washington that becomes so entrenched and so myopic in the sense of being only able to see the problems from the perspective of Washington, that you have an elite in Washington that is very difficult to replace politically because all of the organized interests in the society are established with ties and links to Washington. So every—not just political institutions, not just economic institutions, but all: churches, science, education—every kind of organization that has then once either a subsidy from government or a privilege from government not to pay taxes or to get certain kinds of subsidies, they are all organized around Washington.
The Death of General Legislation [07:11]
Bob Zadek: Because it’s one-stop shopping. It’s one-stop shopping. They have one place to go for all of their needs rather than having to make the case to every single American if what they want is support or membership or participation. It’s all where the power is. Therefore, they have to be merely skillful politically to get the goodies that government has to offer, whereas if they were making the case to the American public, a political skill is less useful than making the case on the merits. So those organizations that succeed in getting the goodies from society are those with political skill, not necessarily those who deserve it.
John Marini: Well, yes. And if you look back, because America has really centralized—it was probably the last industrial nation in the Western world to centralize, I mean administratively centralize in Washington. I’ll give you just one figure. If you had gone to Washington say in 1962, ‘61, or any time prior, you would have seen that there were hardly—there were really no lobbying firms, groups, interests that had a permanent Washington establishment. There simply was no reason to, for the reason that you’re suggesting. Because if you were a corporation, you typically had to deal with the problems of governance, the political problems, the problems of how you’re regulated in states. So if you had businesses in New York, you had to lobby Sacramento—I mean California, Sacramento.
Congress along the way, which has been the handmaiden of the administrative state, Congress has stopped legislating, in John’s words, and has become only an organization that delegates to others, ceding legislative responsibility. And that has been the source of most of our problems. Also, I would remind our listeners that of all the cabinet posts in Washington which administer the bureaucratic state, of all the cabinet posts, there is no cabinet post called the Department of Personal Freedom or the Department of Liberty. Therefore, there is no organized body in Washington to do the most crucial governmental function, which is to protect individual liberty and private property.
Now John, we’re going to go to break in one second. When we come back, John, I’ll ask you to explain a crucial concept which you set forth in great detail in your book, which is you have pointed out that along the way, probably sometime in the ’70s, Congress—and I’ll use your phrase—has stopped legislating and started delegating. That is, Congress has become an oversight body, not a legislative body. That one phrase that you pointed out eloquently in your book is crucial to understanding the dynamic of what is going on in Washington. This is Bob Zadek, I’m speaking with John Marini. John has just written Unmasking the Administrative State. John is a professor of political science at the University of Nevada. We’ll be back in 30 incredibly short seconds. Please stay tuned.
[Ad Break Omitted]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of America. Thank you so much for listening this Sunday morning to my conversation with John Marini. John has just written Unmasking the Administrative State, where he explains to us how we got into this predicament of having our lives increasingly controlled by unelected—and we’ll get back to that concept during this half-hour segment—unelected bureaucrats. And to the extent that bureaucrats, those who make the decisions that affect our life and deny us the power to make decisions for ourselves, those powerful, somewhat invisible bureaucrats are not subject to political control. So here we are in a country where we proudly describe ourselves as being a democracy, which means it is a government controlled by the people, but that has become just not true anymore. The people who control our lives on a day-to-day basis, we have no control over them, we don’t get to pick them. And to that extent, the democracy part of our country’s organizational structure, the democracy has become weakened and relatively insignificant.
Now John, in your book, as I said before the break, you had observed that Congress along the way, probably in the ’70s, but you’ll explain, has stopped legislating and become a delegating body, not a legislating body, basically deflecting responsibility to the other used-to-be but no longer are co-extensive or co-equal branches of government. Tell us what you meant by that: stopped legislating and started delegating, and has become an oversight body.
Aspirational Goals vs. Real Laws [09:26]
John Marini: Yeah, that’s a crucial difference because what happens when Congress decides that more activity is going to be done in Washington, it has to increase the power of the executive branch. And as it decided that it couldn’t make general laws concerning how it is that things that they wanted to regulate could be done, they had to give more power to specialized bodies, bodies in the bureaucracy that had knowledge about how to regulate these things. So you move from being a lawmaking body to an administrative oversight body. And that became, of course, what the central activity of Congress has become. It delegates more and more power to the executive branch, and then of course it becomes harder for it to make general legislation.
Bob Zadek: And we all know that because so many times we are on the evening news and the like, we see congressmen grilling a witness, whether it’s from the Defense Department or from Veterans Affairs, grilling them to get a soundbite on the evening news about what a bad job they have done in carrying out the function that they were delegated by Congress. And that goes through right through to clean air, clean water, endangered species, all aspects of American life. And Congress, once they undertake to legislate in areas that aren’t supposed to be the purview of the federal government, once they undertake to intrude into other aspects of American life, the legislation would become quite complex and beyond the competence of Congress. So what Congress does is they pass aspirational legislation, something like: “We decree that there should be clean air.” Now, we then delegate, “Okay, federal executive branch agency, you figure out how to get the job done. And by the way, if you do it badly, we’ll see you under the klieg lights as we grill you. But you better do it right, but we’re not going to tell you how to do it, because we have to go to our constituency and tell them I voted for clean air, so re-elect me to Congress.” So Congress only sets aspirational goals; it doesn’t pass laws. You said, John, they pass laws—they don’t pass laws, they pass goals, not laws.
The Privilege of the Organized Interest [10:56]
John Marini: No, they don’t pass laws that actually are general laws that apply equally everywhere. What they do is they delegate authority to agencies who then make rules. But rules are laws. The difference is, of course, that when you pass a general law, the law applies equally everywhere. When you delegate authority, the rules become specialized, and they then are dealt with by whoever is regulated also participates in the rulemaking process. So the interests don’t mind this. Let’s say if you’re whoever is regulated by government does not mind being regulated when they are at the table with the bureaucrats figuring out what the rules are going to be. What you lose when you do this is really the rule of law. What you have is that there are people who have extra privileges that appear in Washington—have a privileged position, I mean, in determining what the rules are that govern their own industries. And this is true of almost all kind of activities that is involved in the rulemaking process.
So it’s very difficult to have a rule of law when Congress doesn’t pass general legislation that applies equally to everyone, including Congress, by the way. And Congress routinely exempts itself from the laws it has passed; it also exempts itself from regulations of regulatory authorities. So it’s a very different kind of phenomenon that you have. What you have in Washington really is that the organized interests are privileged in a certain way in which citizens are not. And it’s very difficult then to have the rule of law, but it’s also very difficult to enable the people in the country to consent to the government they have, because they have no way of, as you said, of getting to the people who are actually making these rules that fall upon them in their communities and wherever they are.
So what you have seen over the last 50 years is that almost every organized interest has created a presence in Washington. And if they can’t do it by—if they’re a small outfit, say realtors or any activity that has a lot of local entrepreneurs—all they do is they hire national lobbyists to look out for that interest. And so you have what you have really is a well-organized government of interests, but a government that does not really have any way of expressing what is a common good for all of the citizens.
From Citizens to Subjects [12:29]
John Marini: And it becomes increasingly difficult then for citizens to have any real confidence in their government. And so you have a real disjunction between the people as they live in their society, in their local communities and do the activity that they do that is not—has nothing to do with government. In a way, you could say they’re more like subjects rather than citizens.
Bob Zadek: And John, you said all interests are represented, or all interested interests go to Washington. I would question the word “all.” The interest that is not represented by a lobbying group, John, is you and I. The individuals, the individuals don’t have a lobbying—we don’t have lobbyists lobbying for us. And if we think that our elected officials will do the job, it’s not, because they have delegated to the bureaucrats. So the bureaucrats feel no fealty whatsoever to average Americans. The bureaucrats do not have as part of their assignment to look after individual freedom. There is no agency established to do that. Therefore, freedom always yields, always will yield. So the very structure of the bureaucracy means they will pay attention to all of the interests, all of the technical aspects of their assignment, but they do not pay attention to the freedom. And freedom, as Madison observed, will always yield. And the reason we are spending an hour on a Sunday morning discussing this is because the growth of the bureaucracy is incrementally and dramatically the decline of freedom. And if individuals value freedom as a concept, they must resist the growth of the bureaucracy. The two cannot exist.
Government as a Problem Solver [13:41]
Bob Zadek: Now John, in your book, you mention that bureaucrats see their role to—I think the phrase you use or a phrase very similar is—they see their role as solving the problems of society. Well, who appointed—who picked that as a valid governmental rule? A government’s job is not to solve the problems of society. That’s not what anybody envisioned. It’s to protect property and leave us alone because we are individually and collectively able to solve those problems. So tell us a bit about how they self-appointed themselves as the solution to the “problems of society.”
John Marini: Yeah, well, the way they think about it and the way expertise or the way rationality, social science thinks about this is that these problems are technical problems. They’re problems that can be solved rationally in a way that requires, of course, that they have control over these problems. So when they create expertise in a certain area of society at any level, whether you’re a sociologist, psychologist, historian, you’re always trying to have a way of establishing knowledge about a problem that requires that that knowledge be put to use. And it’s put to use, of course, when government can actually implement what it is that these technicians or these rational bureaucrats decide is a way to solve a particular problem.
So what makes this so difficult to solve is that not only do citizens in wherever they live, in whatever state or locality, they do not participate meaningfully in political life even where they live, because the people that are elected at the state and local levels really are appendages of the federal bureaucracy. In a certain way, if you look at the political leaders in America now, they’re organized around Washington the same way the organized interests are, the economic or social interests. You’ve got national organizations of mayors, national organizations of governors, national organizations of all the authority that exists in local governments are there to petition Washington.
Bob Zadek: But the point John is making is, of course, all the centralized power resides in Washington. Now, it is not my suggestion that individuals should be just abandoned and left to their own devices. And by way of example of how I envision the role of government: by way of example, if you don’t feel well, you have a medical problem. I’m not suggesting you’re going to make the decision how to fix it yourself. But you have the power to select a doctor. You have all the information available to select a doctor. And the proper role of the doctor and the patient—or in my case, an attorney and his client—the proper role is the attorney or the doctor or whatever professional analyzes the situation on behalf of the patient or the client and gives the patient or the client the choices, and the client makes the decision. In a bureaucracy, it’s a distorted relationship. The bureaucracy decides what’s the best solution, and then they force it upon us. We don’t get a choice. So if a doctor were to simply tell you what to do and not give you choices, that doctor would lose her license. You’re not allowed to do that as a professional. But bureaucrats have a different license. They not only will analyze your problem, they will solve it for you, and you darn well better accept their solution or you’re going to go to jail or be fined. So the difference between the government “solving the problems of society” and a physician or an attorney or professional helping an individual solve a problem is, ultimately, the individual has the freedom to decide. When government “solves your problem,” you don’t have that freedom.
So John, I’m sorry we lost you again. So you were explaining to us how the federal government—all governments, but we’re talking about Washington and the bureaucracy—how they got appointed as solving the problems of society, which means that individuals are incapable of solving the problems themselves. It is that core assumption that makes me crazy: that somehow we became wards of the state collectively as an entire society. And bureaucrats aren’t bad people; they are simply empowered because they believe we need it to solve our problems. So hasn’t this just made us all, as I said a second ago, wards of the state, incompetent to make decisions about our lives?
Trump and the Citizen President [15:01]
John Marini: No, I think that’s right. And of course, what you get when you have all of these people who are doing this is they understand their world and their work in terms of their profession, not in terms of—in other words, they think they’re doing good things, of course, people who get trained to do these kinds of things and go to college and get degrees and all of that. But their loyalty really is to their profession. It’s not even a political kind of understanding that is established the way in which a person who’s elected to office has to take into account at least the constituency that elects them. These folks don’t have to consider those things in any political way because the assumption was that when we get to a certain stage in history, politics is going to end and administration—rational administration—is going to solve our problems.
So this is a perspective that was established both theoretically in terms of political thought and then practically in terms of how these structures and institutions were created over the course really of the whole 20th century. And it becomes—America, because of the way in which our Constitution structures government, has made it much more difficult to centralize that administration. So it didn’t happen until roughly the last 50 years or so. But as you can see, as it gets more and more power, it gets harder and harder for the people to participate in their own governance. They can’t participate really meaningfully at the local or state level, and of course they don’t have the means to be able to participate in Washington because you have to have a presence in Washington in order to participate, and only the organized interests can do that very effectively.
But that’s why you have so many people who go to Washington who think that Washington works quite well, because they’re at the center and they think they’re making important decisions and decisions that they think are good and right for the country. But as you say, what that means is when somebody else is making the decisions, you become rather than a citizen, you really do become a subject of the administrative state.
Bob Zadek: Now John, I have seen lots of economic charts, and when you read economic texts, there are lots of charts and graphs and things like that. I have never seen a graph that charts the status of individual personal liberty as a political concept in our country. And I dare say if you were to have two graphs, one is personal freedom and the other is the growth of the bureaucratic state, they move in exact concert—or they move exactly the same. Therefore, as I said earlier, to me the threat is the loss of political freedom, and without any benefit. It’s just an erosion of our personal autonomy with no corresponding benefit. And it’s insidious because it’s so invisible. People don’t notice that now they are carrying a real ID card, a government identification card that they never used to have to carry.
Now, we have only a few minutes left, and you have such an original view of the Trump administration and its role on the administrative state. I know I’m asking for a lot in a very short period of time, but summarize the relationship of the Trump administration, with all of its warts and calluses and problems of style—tell us about how that has affected the administrative state and whether that type of orientation offers promise.
John Marini: Well, I think the thing that Trump saw, and perhaps he saw it better than most because he didn’t come out of the environment of government, he saw that when he ran for office, he thought the goal was political: to actually mobilize a majority, to go to the electorate and tell them what he wanted to do with the view, of course, that if he won, he would actually do it. That has been very rare in American politics in the last 40 or 50 years. So he actually begins from the perspective of a citizen rather than from the perspective of somebody who has established a kind of profession of government as a way of thinking about government as a profession and as a way of actually controlling the activities that go on in government.
And so he is in a sense a threat to Washington because he does take politics seriously in a way in which many of those have not taken seriously in this sense: they think that you can simply mobilize groups, you could keep groups divided, and you don’t have to look out for the interests of the whole. You don’t have to look out for a common good of the citizens as a whole.
Bob Zadek: So we have Trump—I have to interrupt—but I think in summary, we have Trump being the first citizen president we’ve had in quite some time. Kind of interesting. John, thank you so much for giving us an hour of your time this Sunday morning. We sure appreciate your work, and I commend your book, Unmasking the Administrative State by John Marini, M-A-R-I-N-I. It’s a must-read if you want to understand where your freedom has gone. John, thank you so much for your work on the book and for giving us some time this Sunday morning.
John Marini: All right, thank you, Bob.