Three Distinct Questions

A brief thought for all the participants, but especially provoked by Clyde Wayne Crews’ latest contribution: let us not muddle everything up. More specifically, we ought to recognize three distinct questions and keep them firmly separate:

(1) The scope of government generally, as against “private” ordering and markets. Crews starts out as though he means to argue against the administrative state, but much of his quarrel turns out to be with the state, period. Many of his objections would hold no matter what the form of government, for they are objections to collective authority as such. (By the way, I put “private” ordering in scare quotes because I believe with Robert Hale that there is no such thing, that in fact “private” ordering is entirely parasitic on an old-fashioned form of governmental regulation, conducted through common-law courts prescribing rules of property, contract, and tort. Those courts are just an odd premodern type of administrative agency, with special tenure rules and procedures. However I need not argue this issue here; it is inessential to the distinctions I draw).

(2) The scope of national governmental power as such, vis-a-vis other actors. Even if the scope of Congress’ powers has expanded over the course of our history (and that is a controversial proposition), that does not yet have anything to do with the administrative state. Sometimes seeming objections to the administrative state are really objections to the content of regulatory policies, whether created by bureaucracies exercising delegated authority or instead created directly by substantive legislation itself. (I think that some of Crews’ objections are like this, but I can’t really tell). The scope of the national government’s total powers may or may not be “too” great, but the question about the administrative state involves the allocation of those powers within the government, between legislature and executive, not their scope as a whole.

(3) The scope of executive and administrative power. Finally we come to the administrative state proper. Here we encounter the paradox of arguments against delegation, my repeated theme in these comments. Why do critics of the administrative state (like John Hasnas in his latest) want more lawmaking to be accomplished directly by Congress, rather than indirectly by delegation to the administrative state? If it is because they believe that the Constitution makes Congress the preferred lawmaker, or that Congress has unique institutional properties (representativeness, deliberation, etc.), why does that rationale stop with direct substantive lawmaking, rather than including indirect delegated lawmaking as well? If they trust Congress to make laws, why don’t they trust it to make delegating laws? If they don’t trust it to determine when delegation is appropriate, why should they prefer that Congress decide the content of the laws for itself? Or is the putative objection to delegation really a disguised objection to the relevant law being made at all, by anyone? If so, let us have a conversation about the state, not the administrative state.

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