Farewell to the Administrative State?
What sort of political system do we have in America? Why, republican self-government, of course. Government of the people, by the people, and for the people, as mediated by our hallowed constitutional institutions. Doing our thing for 227 years now.
A great many people aren’t buying that story these days. They look at our actual manner of governing and see bitterly contested symbolic elections awkwardly joined to a powerful technocratic administrative state that makes most of the important decisions. The disconnect between the ideal and the reality has brought us a legitimacy crisis that has been often touched upon in these virtual pages lately.
Following in the long tradition of the original progressives, some people observe how far our administrative practice has diverged from our constitutional theory and then conclude that the quaint old theory must go. Democracy, taken at its word, doesn’t look so great for anyone, and so it is better to put our trust in those who know the most, imperfect though they may be. Some are willing to argue that the best thing would be to make a clean break, chucking out such obsolete baggage as the Congress. More often, those who see the administrative branch as our most knowledgeable and healthy branch offer elaborate reconciliations of technocracy and our democratic heritage and urge citizens to take comfort in the ways in which our current dispensation is formally open to their plaints.
Given the mood of 2016, both the naked and democratically clothed justifications of our technocratic administrative state come off as rather willfully oblivious: angry citizens who want government by the people are unlikely to be placated by being told by regulations.gov that they can “Make a difference. Submit your comments and let your voice be heard.” There is a profound lack of trust, a sense that in practice the administrative state is insular and uninterested in the concerns of ordinary people, even if it has to check the box of procedural openness. Instead, many on both the left and the right see agencies as nested in an elaborate system of crony capitalism they lack the perspective to overcome. People are angry, and they want their government back.
Unfortunately, this often-justified anger is mostly channeled into unproductive outlets that, ironically, are likely to worsen our current dysfunctions. This is especially so for the populist impulse that has surged to the forefront of our politics. The common thread uniting populists left and right is the idea that if the people could shake off the yoke of iniquitous elites, they would naturally govern effectively. Self-serving interests prevent that from happening, entrenching the status quo by colonizing the mediating institutions, which by design are meant to serve the people.
There is more than a little truth to the populists’ criticisms, but their ideas about the natural state of things if only they could strip out those infected intermediating layers are utterly fantastic. In their mind, these institutional encumbrances will recede from the path of the people’s righteous march forward and the public good will be realized immediately: without delay and without being corrupted.
This Rousseauian dream has been with us a long time, but its central flaw can never be fixed: there simply is no general will from which a government can faithfully take dictation. Government cannot simply be a portrait-in-miniature of society, especially when its work extends into areas with which most people are completely unfamiliar. Even when citizens do have views that could be mirrored, there is no perfect way for government to ascertain their presence and intensity. And there is no chance at all that simply taking on the people’s will through osmosis could result in an internally coherent (or even non-contradictory) web of laws. Politics may well have the potential to be corrupting, but it does effectively allow collective decisionmaking about what our government should do and how.
Populists have no substitute, and so they are likely to create a vacuum in which technocrats prevail. Democratic idealism goes hand in hand with cynicism about democratic practice: people desire “a democracy too good for politics,” and when reality disappoints “the demos turns to fugitive escape.” Today, as was the case a century ago, populism ends up bundled with empowerment of “apolitical” technocrats precisely because they are willing to pretend that they can neutrally channel the public’s interests through the exercise of purely technical expertise. Of course, in practice, politics will merely take different, less legible forms, and people will resent the subterfuge; we will be right back at the legitimacy crisis with which we began.
Libertarians, second to none in their hatred of politics, offer their own distinctive forms of escapism even as they congratulate themselves on their unusual sense of realism. Starting from the undeniable premise that voters are rationally ignorant and/or irrationally passionate about nearly all political matters, they jump to an end-point in which government keeps its nose out of all but the most crucial functions, thereby leaving the bulk of human actions free of the pernicious influence of politics.
But how to get from here to there? We live in a democracy full of fellow-citizens who think that “crucial functions” are very extensive indeed. One libertarian tradition is simply to flip these fellow-citizens the bird and insist that a cadre of the right kind of rulers—anti-technocratic technocrats, more or less—will somehow gain power and make our government best by governing least. That is undoubtedly an applause line in many rooms, but it is the equivalent of not playing the game at all.
Sophisticated anti-political classical liberals go beyond this hand-waving to offer mechanisms by which our current mixture of low-brow electoral politics and high-powered administrative decisionmaking could be dislodged, most often putting their faith in the courts. The rights-based vocabulary of constitutional law offers them an ostensibly apolitical sword to wield against government actions, one that can be said to serve a higher master than normal democratic politics. Taken up within the context of specific legal battles, this has proven to be one of libertarians’ most impactful entrées into active political disputes, whether or not they would characterize it that way.
It is less clear whether this way of thinking offers a path to wholesale change, but there are now a number of serious efforts in that direction. Notably, Charles Murray’s latest book waves the banner of government “By the People” and calls on the public to combine widespread civil disobedience to the administrative state’s edicts with maximalist legal opposition. The goal would be to overwhelm the federal government’s enforcement capacities, exposing it as a paper tiger and forcing a new age of genuine self-government. He is confident a silent majority can be called upon to denounce the obviously harmful scourge of overregulation; I am dubious. In envisioning a revolutionary transcendence of the administrative state, Murray attempts to fuse a libertarian agenda with the current anti-political, populist mood, but in doing so he partakes of that populism’s weaknesses.
The deepest recent attempt to dislodge the administration-heavy status quo with an appeal to first principles is Philip Hamburger’s “Is Administrative Law Unlawful?” A distinguished legal historian, Hamburger tries to reanimate ancient Anglo-American constitutional principles for a modern audience and show why they are so profoundly incompatible with the prerogative-like tendencies of our contemporary administrative state. By sensitizing the public to the ways in which our current arrangements effectively represent a return to our “preconstitutional past,” he hopes to shift the paradigm of thinking about the administrative state and lay the groundwork for a massive reorientation of our government. To his credit, he acknowledges that this is sufficiently revolutionary as to feel somewhat quixotic.
But Hamburger can’t be accused of being anti-politics; indeed, the force of his argument relies on people understanding why democratic legislatures are superior bodies for decisionmaking relative to expert-led administrative agencies. He is worth quoting at length:
The administrative power substitutes the specialized knowledge of administrators for the specialized authority of the branches of government. In a strange way, therefore, the administrative combination of expert knowledge and consolidated power really does hark back to the medieval monarchical vision of a wise ruler, who knows what is best for his people, and who therefore must have the full range of unspecialized power to impose justice. The result is a government ill equipped to handle modern life. Rather than take advantage of the diversity, freedom, and epistemological openness of modern science and society, administrative law responds to these conditions with epistemological arrogance and consolidated power.
This is a deep point. Because administrators style themselves as above-the-fray solvers of collective problems, it makes it very difficult for them to question their assumptions or open themselves to exchanges with critics on equal terms. Doing so would threaten their pose as “wise rulers” and show the political choices embedded in their thinking, and so their natural tendency is to hunker down—the very thing that has led to legitimacy problems over the long run, even as it fends off some short-term headaches by branding critics as “political” or as working for “special interests.” Legislatures, on the other hand, institutionally specialize in openness and the ability to find compromises even among people who remain in open political disagreement.
What is needed, once again, is a way to get from here to there. Hamburger often allows his historically informed contempt for the administrative state to blind him to the solidity of its political support in the present, and to overlook the ways in which our current legislature fails at precisely the functions he assumes are its specialty. This is particularly clear in his discussion of consent. To his mind, the legislature possesses legitimacy because people have meaningfully consented to follow its choices through voting; and this rationale is even more powerful today than in the distant past because of the greater inclusiveness of the franchise. I’m not sure whether the formalism of that account fits with people’s perceptions of reality, though. Consent is everywhere and always a legal fiction, but if there is a strong bond between the people and their legislature, it may be a sacred one that offers an enduring foundation for government. If that bond is weakened because people think of legislators as hapless or corrupt or both, the idea that legislators’ deals represent the public’s consent will come to seem grotesque.
To move our government’s center of gravity out of the administrative state will require several steps. One is to challenge the pieties of modern administrative law scholars, who are as a rule staunch defenders of current arrangements. Hamburger’s book does valuable work in this regard. Another is to effectively catalog the status quo’s shortcomings when it comes to the insularity and high-handedness of the administrative sate. This must be done in a way that transcends shallow partisanship, as opportunistic arguments implausibly blaming the Obama administration discredit deeper attempts at understanding and should be vigorously contested.
Probably most important, though, is to show that Congress can actually do the work of an intermediary rather than just telling people it is meant to play this role. That means doing the work of incremental legislating, even when it is unglamorous and even when it requires working through suspicions that interests are working the system. Inevitably, they will be; everyone is an interest of some sort. Not performing this role successfully is the signal failure of Republican congresses over the past two decades, and especially since 2011. If Congress actively demonstrates itself to be a body devoted to zero-sum posturing, that is how people will think of it, making a technocratic administrative state look relatively appealing.
Not one of these efforts is aided by imagining that the administrative state will vaporize at some point if only its opponents get their ducks in a row and bring the right constitutional challenges or finally elect the right president. Indeed, pining for such abrupt transformation is the surest recipe for continued dominance of the administrative state.
Should we have allowed the administrative state into our common law home, so long ago? That question makes for fascinating counterfactual history, but its answer has only limited bearing on our present situation. The struggle for modern self-government, whatever that can realistically mean, entails disciplining and humbling the administrative state we have, not re-running more than a century of state development. The sooner the administrative state’s critics realize this, the sooner they can begin to restore the legitimacy of our government.
For an extended version of this argument, see Wallach’s recent Brookings paper, “The administrative state’s legitimacy crisis.”
 Edward Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton: Princeton University Press, 2005); Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2010).
 E.g., Cass Sunstein, “From Technocrat to Democrat,” Harvard Law Review 128 (2014): 488-497; “The Most Knowledgeable Branch,” forthcoming in University of Pennsylvania Law Review (http://papers.ssrn.com/sol3/ Papers.cfm?abstract_id=2630726).
 Steven Bilakovics, Democracy without Politics (Cambridge, MA: Harvard University Press, 2012), 19.
 James A. Morone, The Democratic Wish: Popular Participation and the Limits of American Government (New York: Basic Books, 1990); Herbert Storing, “Political Parties and the Bureaucracy,” in Toward a More Perfect Union: Writings of Herbert Storing, Joseph Bessette, ed. (Washington, DC: AEI Press, 1995) (http://www.citizenship-aei.org/wp-content/uploads/15.-Political-Parties-and-the-Bureaucracy.pdf).
 Charles Murray, By The People: Rebuilding Liberty Without Permission (New York: Crown Forum, 2015).
 Philip Hamburger, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014).
 Philip Hamburger, “Vermeule Unbound,” forthcoming in Texas Law Review (http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2691181). Anyone who cares about these issues should engage with the whole Hamburger-Vermeule fracas: see also, Adrian Vermeule, “No: Review of Philip Hamburger, Is Administrative Law Unlawful,” Texas Law Review 93 (2015) (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488724), and Cass R. Sunstein and Adrian Vermeule, “The New Coke: On the Plural Aims of Administrative Law,” forthcoming in Supreme Court Review (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2631873).
 Hamburger, Is Administrative Law Unlawful?, p. 344.