On the Administrative State’s Illegitimacy

“Who better than overreaching bureaucrats to decide when the bureaucrats are overreaching?”

That was one respondent’s characterization of the mindset that provoked the recently introduced Separation of Powers Restoration Act.

What can the administrative state not do? What are its bounds? Reducing the influence of the coercive state rather than reconciling to it still hasn’t fully registered in this Cato Unbound exchange over the regulatory state’s legitimacy.

Instead the central concern in this exchange has been what counts as legitimacy. To me this starting point means recognizing there are some things that we cannot vote on, and therefore there are powers over our economic and social lives that even Congress, the most accountable branch, cannot claim. We individually do not have such powers to delegate to representatives.

In turn, the delegated-to, unelected administrators would have to be even more restricted. That appears to be something with which John Hasnas would agree; our lead essayist Philip Wallach might partly agree, but Adrian Vermeule sees no problem with the administrative state at all. 

Congress assumed vast power and then delegated not just wiggle room but acreage to agencies. But Vermeule is fine with that: “If we think that Congress possesses unique deliberative capacities, or uniquely representative properties,” we should trust its delegation.

I don’t recall granting such concession; I’ve never blindly “praise[d] Congress’s special qualities” as an untethered lawmaker, and don’t recall anyone doing it at Cato when I as there either. For a Congress that doesn’t even read its own laws, delegation cannot be “just one more species of lawmaking, one more tool in Congress’s toolkit.” I’m against deference to agencies, but I’m against blind deference to Congress, too. I see the role of public policy and the statesman as continuing to expand deference to free citizens in recognition of their ability to solve problems. But that’s not happening, and it’s a sign of the state we’re in when an upcoming tell-all confessional by (apparently) a democratic representative will expound upon the prevailing “screw the next generation” attitude in our Congress.

I strongly agree with John Hasnas that democracy as construed today is not a virtue, that just because large numbers desire something does not render it “magically…invested with moral authority.” Democracy is picking personnel not masters.

Where Hasnas properly warns that numbers do not confer legitimacy, the administrative state doesn’t even bother with that. We don’t have large numbers calling the shots. We have relatively small numbers of the unelected, the self-interested. Yet Vermeule argues agencies don’t even legislate, calling what agencies do a delegation of authority, not an exercise of Congress’s own legislative powers. Writing about constraints that don’t apply, he says “agencies acting within the boundaries of their statutory authority exercise executive power, not legislative power.”

Vermeule continued, there are “very few…blank checks,” but rather “substantive and procedural constraints.” In my first entry in this exchange I noted the way the administrative state works, or rather, doesn’t work, in the sense of dispensing the Administrative Procedure Act that allegedly governs it, for rules, let alone the guidance, bulletins, memoranda, notices and the other material that I’ve taken to calling “regulatory dark matter.” Perhaps in an upcoming post I’ll note some examples of how “lawmaking,” for want of a new more descriptive term, happens now. Despite traditions going back to the ancients that inspired our framers, maybe nothing gets written down at all by today’s rulers.

Not only are there blank checks, some agencies run their own finances without congressional oversight, as little independent national governments. Even a change in presidential administrations may render little or no control over agency heads. As a nonlawyer hearing talk of Auer and Chevron deference and the enabling dominoes that tumbled before them, I regard the “intelligible principle” test for “legitimate” delegation as a diversion. Kind of a sandbox on a beach.

Vermeule further contends that “A nation that twice elected Barack Obama by clear margins is a nation comfortable with technocratic governance.” Apart from the numbers-rendering-legitimacy misconstruction, I may have more to say on such alleged “expertise” later as well. The administrative state does different things: part of it is wealth transfer, other parts are certain kinds of economic regulation, other parts range from health and safety protection to nannyism, and we have yet to distinguish between them in this forum. But the fact that officialdom neither does so nor recognizes the limits of competence achievable among them is another strike against legitimacy.

Making a law needs to be a risk to someone if done wrong. If you’re a legislator, perhaps you’re voted out. But today we have blank checks and the pretense of expertise instead of ironclad accountability for rent-seeking and cronyism. That allows the administrative state to say to those who wish for and want to protect traditions of limited government—in the country that largely created the phenomenon—to give it up. Indeed what anymore is regarded as not the business of the state, and championed by the bulk of academics? We are to believe that not only is it right for the administrative state to grow, but there is nothing to do about it. No thanks.

Vermeule did acknowledge a “vast shadowland of quasi-public bodies and government corporations.” Yet again we are assured there is no legitimacy crisis: “It seems the administrative state is pretty much what our Republic wants.” Alas, if we have an “administrative state,” then what we have is not a “Republic.”

The Constitution is one of humanity’s signature creations. Perhaps it could have been stronger and even more explicit than it is in restraining the state. But how sad to see the inadequacies of the branches to limit one another exploited so as to argue that the non-limitations were intended. What a disappointment to see the all-too-natural human failings of this precious, unique creation  get turned against the very country it created and used to justify blatantly unintended expansions of the state.

The question of legitimacy of the administrative state hinges on what government is, and can be, in the evolution of human liberty. America may well governed by the view that the Constitution smiles upon the administrative state. But even if the Constitution didn’t ban delegated power by design (I side with Philip Hamburger that it did), or if it failed to do so in practice (which is obvious), we remain able to envision, and enable, the ideal of limited government.

Also from This Issue

Lead Essay

  • Farewell to the Administrative State? by Philip Wallach

    Philip Wallach describes rising skepticism about the administrative state in our representative government. But what can be done about it? Populists promise to return the government to the people, and yet effective government in the modern world to a high degree requires technical expertise. Libertarians have a telling diagnosis of the problem, says Wallach, but few workable solutions. If Congress is to regain control of the sprawling administrative state, it will have to demonstrate that it is willing and able to govern instead.

Response Essays

  • The Administrative State’s Irredeemable Devotion to Central Power by Clyde Wayne Crews

    Clyde Wayne Crews finds much to agree with in Philip Wallach’s diagnosis of administrative sprawl. But then he asks: Why not rein it in? Other countries have done so, and we have even taken some important and bipartisan steps in that direction before. The bureaucratic pretense of expertise has never been so clearly exposed as it is today, and we should take the opportunity to improve the regulatory environment before incipient technologies, like autonomous cars and commercial drone transport, are caught in the regulatory web.

  • What Legitimacy Crisis? by Adrian Vermeule

    Adrian Vermeule openly doubts that the administrative state faces a legitimacy crisis. He observes that Congress itself created the administrative state, and that it remains firmly in control of its creature. Moreover, the public appears fairly content with the administrative state that we have, and certainly shows no inclination to scrap the whole thing. Both these observations should count, he suggests, in any consideration of the administrative state’s legitimacy. In short, there is no crisis here, and no radical solutions are warranted.

  • It’s Better Not to Play the Game at All by John Hasnas

    John Hasnas does not think that the administrative state can be reformed. But it can be outpaced. This, he says, offers hope for libertarians, whereas politics does not. The administrative state is inherently slow to adjust to new social developments, and liberty will always exist just a few steps ahead of it.

The Conversation