The administrative state is the subject of recurring treatment across The Bob Zadek Show, where guests describe it as the apparatus of government agencies that carry out government programs and debate whether it can be reconciled with the Constitution. Bob Zadek introduces the topic as one that “affects every American every day,” while noting that few Americans know what the administrative state is or how it came about The Dubious Morality of the Modern Administrative State (2020).
Defining the administrative state
In the 2020 episode with Richard Epstein, Zadek frames the administrative state as something not provided for in the Constitution, which sets up three branches of government — executive, judicial and legislative — and says nothing about it. He asks Epstein to divide his answer into two parts: administration in general, which the Constitution anticipates (he cites the Postmaster General and the post office), and the “somewhat sinister-sounding” administrative state The Dubious Morality of the Modern Administrative State (2020).
Terry Moe, in the 2021 episode on populism after Trump, gives the more deflationary definition: “All modern governments have administrative states,” and the administrative state “is nothing more than all the government agencies that carry out the programs of government.” Governments have programs, he says, because as democracies they are filled with people who experience socio-economically caused problems that government is expected to solve — from antitrust to poverty programs to environmental programs to agricultural programs. The only way to have no administrative state, on his account, would be to return to a primitive society; the founders lived in such a society, but we do not Populism After Trump (2021).
The constitutional objection
Zadek’s framing in the Epstein episode is that the administrative state is a recent invention, not controlled by small-d democracy, and that it is simply “there.” He asks Epstein to explain what is meant by the administrative state and to separate the ordinary administration the Constitution anticipates from the administrative state proper The Dubious Morality of the Modern Administrative State (2020).
Philip Hamburger, appearing in 2021, describes the administrative state as “the fourth branch of government” and treats administrative power as the greatest threat to civil liberties in our era. He argues that through intimidation the court has legitimized administrative power, taking away most procedural rights such as juries and the right to govern ourselves through Congress. He contrasts progressives, who sought the administrative state and now want still more power on the Supreme Court, with conservatives, who he says are not seeking a reconfiguration of the judiciary to get their way but arguing through logic for the defense of rights Philip Hamburger on Court Packing (2021).
Timothy Sandefur, discussing a libertarian constitution, says the problem is that agencies write rules and put them into effect without real congressional or presidential oversight, so that the laws people live under are written by hirelings rather than by elected representatives. He adds, however, that agencies are “just basically an inevitable part of government” and that his team’s view was that as long as constitutional protections for individual rights were faithfully followed, they could live with the existence of administrative agencies Timothy Sandefur on The Libertarian Constitution (2021).
Populist hollowing-out versus principled small government
The 2021 populism episode turns on a distinction between attacking the administrative state and shrinking government on principle. Zadek asks Moe what he meant by the “hollowing out” of the administrative state and why an un-hollowed-out administrative state should be thought a good thing, given that its officials are unelected Populism After Trump (2021).
Moe answers that Trump sought to hollow out the administrative state by undermining professionalism and expertise and science and the capacity of government to solve societal problems effectively. He says populists can take on the administrative state because they lack a constructive agenda: they are anti-expert, anti-science, anti-professional, and Trump never had a constructive domestic or international agenda. As an example he says Trump tore away at agencies like the State Department, causing hundreds of top-level foreign service officers to depart and crippling it, without replacing it with anything. Moe adds that the people who staff the administrative state are not unaccountable; they are held accountable by the representatives elected at the top of government Populism After Trump (2021).
William Howell, in the same episode, draws the contrast Zadek had in mind: a principled effort to limit the reach of government would scale back government thoughtfully, whereas the populist lays waste to the apparatus without arguing that government should not be in the business. Howell says this is not an argument for limited government or conservatism; it is about undermining professionalism and expertise, and under Trump there was no reduction in the size of government, only a much less effective, hollowed-out administrative state. On that basis, he says, the populist and the libertarian part company early on Populism After Trump (2021).
Litigation against agency power
Hamburger founded the New Civil Liberties Alliance, which he describes as an alternative to the ACLU — doing what the ACLU should have been doing but has not. He says the organization defends procedural rights such as jury rights and due process, defends speech rights, and defends the right to govern ourselves through legislation rather than through administrative rules, all through litigation. He puts the team at about 20 people in Washington, D.C., and says that in a few years it got the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines, in which the courts defer to administrative agencies Philip Hamburger on Court Packing (2021).
In a later 2021 appearance, Hamburger repeats that he founded the organization about four years earlier out of dissatisfaction with how conservative and libertarian organizations were litigating to protect freedom. He describes the theory of the organization as being that administrative power is the greatest threat to civil liberties in our era. As an example of its litigation, he describes the Securities and Exchange Commission going after people who do insider trading — conduct he says the organization does not defend — but doing so through rules the agency invents rather than through an act of Congress, and prosecuting people in its own non-courts run by so-called administrative law judges who are not really judges, who do not give you a jury, who do not give you due process of law, and are quite biased The New Civil Liberties Movement (2021).
Hamburger says the litigation succeeded well enough that the SEC has largely given up bringing its cases before administrative law judges and is being forced into district court. He then describes Spartan Securities v. SEC, in which the judge instructed the jury that guidance is not binding as law, and the jury acquitted the client on 13 out of 14 charges, the fourteenth being small potatoes. He characterizes this as chasing the SEC out of its unconstitutional administrative tribunals into district court, part of a larger strategy to take down those tribunals The New Civil Liberties Movement (2021).
Across episodes
The topic recurs across four episodes spanning 2020 to 2021, and the excerpts show a shift in emphasis rather than a single developing argument. Epstein’s episode treats the administrative state as a moral and constitutional anomaly; Moe and Howell, in the populism episode, treat it as a functional necessity and attack the populist alternative to it; Hamburger, in two episodes, moves from describing the problem to describing litigation strategy and specific successes; and Sandefur, in the last of the episodes, treats agencies as inevitable and conditions his acceptance of them on enforcement of individual-rights protections. No guest in these excerpts responds directly to another’s position.
What the sources do not cover
The excerpts do not supply a founding date for the administrative state, a definitive account of its origins, or the text of any statute or constitutional provision said to authorize or forbid it. They do not state the outcome of any case beyond Spartan Securities v. SEC, nor which amendment any challenge turned on. The Epstein excerpt breaks off before Epstein answers Zadek’s request to define the administrative state, and the Howell excerpt in the populism episode ends mid-sentence.