I’m very grateful to Cato Unbound for hosting such a lively, thought-provoking conversation over the last month. My interlocutors have left me with a great deal to ponder. Here are a few parting thoughts.
What kinds of delegations?
Adrian Vermeule has doggedly persisted in arguing that if we trust Congress enough to make policy decisions itself, we must also trust it when it decides that delegating some part of policymaking is the wisest course. But Congress is an institution with changing membership, and the world that legislators confront at the time of lawmaking will not be the same as the one that exists 10, 20, or 50 years later. Statutes possess legitimacy when they reflect the best attempt of plural, conflicting legislators to direct the power of the (yes, generally administrative) state to the best effect given existing circumstances.
But there is no reason that the incompletely theorized agreements that result from this process should confer legitimacy on whatever actions the administrative state tries to tie to them for the rest of history. For purposes of legitimacy, old delegations are more problematic than recent ones; delegations that resulted from bitterly contested partisan victories are more problematic than those backed by nearly the whole range of diverse legislators; and delegations accompanied with clearly articulated purposes are less problematic than those conferring unpredictable powers on administrators.
One way to approach all of these issues is through the question: delegations to the administrative state, yea or nay? If this is the issue, probably I am closer to Vermeule than to Crews or Hasnas: I do not think across-the-board rejection is feasible or desirable. Where I part ways with Vermeule is when he suggests that if we choose the affirmative, any legitimacy problems our government may face today must have nothing to do with the particulars of its administrative character. The administrative state we have is often inadequately policed by Congress, insular and dismissive of external criticism, and overly convinced of its own ability to transcend politics. As I see it, addressing these flaws is crucial to maintaining our government’s legitimacy; complacency about them is a recipe for disaster.
What can Congress do?
John Hasnas gives one cheer for congressional government, if only because there are fewer people in the legislative branch. That means that if we really forced all policy decisions to go through them, government’s capacity to widen the “realm of collective choice” would hit a “physical” limit. Hasnas admits that this is not the world we live in, but nevertheless thinks that pining for a revitalization of the non-delegation doctrine and a robust separation of powers is no more unrealistic than other “wishful thinking [that] is standard procedure” in the realm of politics.
But if congressional incapacity is a virtue in Hasnas’ alternate world, I hope that readers will nevertheless consider whether improving congressional capacity is the better way toward disciplining the administrative state in our world. Our institutional inheritance now includes a residuum of federal statutory powers that empowers the executive branch to take on nearly any issue, albeit sometimes through quite strained interpretations. In the absence of congressional direction, the administrative state is left to find its own way, with bad consequences for policy substance and legitimacy. (Also note that the historical underpinnings of non-delegation restorationism are shaky.) Of course, even if legislators are able to check the administrative state, getting them to make use of that capacity may be hard. But worries about willingness should not make us pleased with congressional disability.
Big-L Libertarians and the Administrative State
These issues take on new urgency as we turn toward the 2016 presidential election. Democrats and Republicans will offer two candidates more reviled than any others in American history, and neither of them will be offering a vision of a constrained administrative state. The usually quixotic Libertarian Party, on the other hand, has just nominated a ticket of two fairly moderate former governors who can offer a sober message of limited government. How they fare is likely to be of enormous consequence as the platforms of the two parties resettle into some new equilibrium.
The debate we have been having here is crucial to how Libertarians approach their opportunity. Will they view 2016 as their best chance to spread the gospel of minimal government and maximum human freedom, or will they offer their party as a practical champion of limited government in the here and now? Of course these are not mutually exclusive, but I would suggest they are very much in tension.
If Libertarians choose the evangelist’s path and present themselves as implacable enemies of the administrative state—as being committed to a vision of government that most of their fellow citizens would regard as anachronistic—they may win a few converts, but they will put a low ceiling on their support. On the other hand, if Libertarians focus on making the most of the institutional tools available to discipline the administrative state we have today, without any illusions that they can deliver minarchy tomorrow, they can force a broader electorate (and the other candidates) to take up important questions about how the administrative state goes about its business.
There are a great many such questions worth asking. Clyde Wayne Crews has raised some important ones about whether the administrative state actually observes the processes that it relies on to legitimate itself; I have offered some others, and of course regulatory reform ideas are legion. From my perspective, the most important thing is that people get beyond the distraction of the “yes/no” dichotomy and ask which aspects of the administrative state’s behavior worsen our government’s legitimacy problems, and what can be done to fix them.