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Administrative State

7 min read

Part of Regulation and the administrative state.

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Every episode (10)

Who argued it

Richard Epstein ×2 · Timothy Sandefur · Bob Levy · Philip Hamburger · William Howell · Terry Moe · Glenn Roper · Frank Buckley · John Marini · R. Shep Melnick

Constitutional Law · Federalism · Separation of Powers · Libertarianism · Title IX · Commerce Clause · Property Rights · Court Packing

Background

What the administrative state is

Bob Zadek introduced the topic by noting that the administrative state is not provided for anywhere in the Constitution, which sets up three co-equal branches—executive, judicial and legislative—and says nothing about it; he called it a somewhat recent invention, not of the founding era, and not controlled by small-d democracy The Dubious Morality of the Modern Administrative State (2020). He asked Richard Epstein to divide his explanation into administration in general, which the Constitution anticipates—it provides for a Postmaster General and a post office, and no one expects the Postmaster General to deliver the mail personally—and the administrative state proper.

Terry Moe, in a later episode, defined the administrative state as nothing more than all the government agencies that carry out the programs of government, and said all modern governments have administrative states Populism After Trump (2021). Governments have programs, he said, 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, he argued, would be to return to a primitive government in a primitive society; the founders lived in such a society, but we do not.

Philip Hamburger, described by Bob as a law professor at Columbia Law School and author of a book questioning whether the administrative state was unconstitutional, called it the fourth branch of government The New Civil Liberties Movement (2021). Bob framed Hamburger’s later book, Purchasing Submission: Conditions, Power, and Freedom, as an examination of the administrative state’s use to coerce individuals, entities and other branches of government into surrendering otherwise constitutionally protected rights.

The case against

Hamburger told Bob 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 Philip Hamburger on Court Packing (2021). He said progressives who sought the administrative state and this deprivation of rights now want still more power on the Supreme Court, whereas conservatives are not seeking a reconfiguration of the judiciary to get their way but arguing through logic for defense of rights.

Hamburger’s New Civil Liberties Alliance, which he founded about three or four years before that episode as an alternative to the ACLU, defends procedural rights like jury rights and due process, speech rights, and the right to govern ourselves through legislation rather than administrative rules, through litigation Philip Hamburger on Court Packing (2021). He said the organization has about 20 people in Washington, D.C., and had already gotten the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines, and hoped soon to take big chunks out of the administrative state and its unlawful power.

In the later episode Hamburger gave the Securities and Exchange Commission as an example The New Civil Liberties Movement (2021). The SEC goes after insider trading, which he said the organization does not oppose regulating, but does so with its own invented rules that are not law and prosecutes people in its own non-courts run by so-called administrative law judges who are not really judges, give no jury and no due process, and are quite biased. He said the NCLA’s litigation forced the SEC largely to give up bringing cases before ALJs, and that in Spartan Securities v. SEC the judge instructed the jury that guidance is not binding as law and the jury acquitted the client on 13 of 14 charges.

Timothy Sandefur said 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 instead of by the people’s elected representatives Timothy Sandefur on The Libertarian Constitution (2021). He also said the blame for the president’s excessive authority resides primarily in Congress, which passes laws giving the president a blank check—to seize property and declare it a national park with a signature, or to dispatch the military without meaningful congressional oversight.

The case for

Moe argued that the administrative state is the organizational means by which government programs are carried out, and that the only alternative is a primitive society Populism After Trump (2021). He said Trump sought to hollow it out by undermining professionalism and expertise and science and the capacity of government to solve societal problems effectively, and that this undermines the government’s capacity to do what citizens want done. Populists can take on the administrative state, he said, because they have no constructive agenda; they are anti-expert, anti-science, anti-professional, and Trump tore away at agencies like the State Department, causing hundreds of top-level foreign service officers to depart and crippling it, without replacing anything. He added that the people in the administrative state are not unaccountable—they are held accountable by the representatives elected at the top of government, and that this is how government works in all modern democracies.

William Howell distinguished a principled effort to limit the reach of government—scaling it back in a thoughtful, serious way—from what the populist does, which is lay waste to the vast apparatus without arguing that government should not be in the business Populism After Trump (2021). He said 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. In that sense, he said, the populist and the libertarian part company early on.

Sandefur said agencies are basically an inevitable part of government and cannot really not exist in some form, and that his team was content to live with administrative agencies so long as constitutional protections for individual rights were faithfully followed Timothy Sandefur on The Libertarian Constitution (2021). He acknowledged that libertarians might roll their eyes at that condition, and said the biggest constitutional problem today is that the promises are not followed because people either do not understand them or elect officials who do not care about them.

Across episodes: two defenses, one critique

The episodes show the same question argued across episodes without a clean development. Hamburger, in 2021, presses the critique that administrative power deprives Americans of juries, due process and self-government through Congress, and describes litigation strategy against administrative tribunals Philip Hamburger on Court Packing (2021) The New Civil Liberties Movement (2021). Moe and Howell, in the January 2021 episode, defend the administrative state against populist hollowing-out and distinguish principled small government from anti-expert attack Populism After Trump (2021). Sandefur, in November 2021, accepts agencies as inevitable while faulting Congress for delegating and the courts and people for failing to enforce constitutional limits Timothy Sandefur on The Libertarian Constitution (2021). The earlier Epstein episode frames the definitional question—administration in general versus the administrative state—that the later episodes assume The Dubious Morality of the Modern Administrative State (2020).

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