Questioning the Administrative State

The Administrative State’s Irredeemable Devotion to Central Power

Response Essays
May 4, 2016

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.

I remember when I first became a libertarian. There was no Internet, just countless enthusiast flyers in the mail. One of them showed a bureaucratic overlord warning a subject, “The line in the road never shines brightly: I tell you where the line is.”

As we reckon with the administrative state’s “legitimacy crisis,” for which Philip Wallach’s “Farewell to the Administrative State?” advises “middle way” solutions, I must make a foundational observation: We are dealing with the fruits of the assumption of sweeping powers by Congress in the first instance, and the over-delegation of power to administrators atop that. Whatever the roots of the expansive administrative state (progressivism, neglect, populism, envy, cronyism, power lust; you can find books arguing each), lawmaking power left the house of classical liberalism long ago.

Granted, most want more government than I do; my own personal “Article I” limits Congress to picking a national bird. OK, I exaggerate; however a “national mammal” was just selected this week.[1] I’m the sort who appreciates Henry Hazlitt’s framing in “The Torrent of Laws”: [I]f the government confined itself to enacting a code of laws simply intended to prevent mutual aggression and to maintain peace and order, it is hard to see how such a code would run into any great number of laws.”[2]

That’s an alien idea today when legislative, executive and judicial one-upsmanship seemingly comprise an unbounded societal game of rock-paper-scissors. We would worry less about the “profound lack of trust” in our governing institutions if government remained confined to specific functions.

So what to do? Philip Wallach seems reconciled to the legitimacy of the administrative state. He seems to hold that its problems are not innate and that incremental reforms can make it efficient and responsive. We aren’t told exactly what solutions would be in his brief Cato Unbound essay, but his larger paper “The Administrative State’s Legitimacy Crisis” defines his “middle way” as one “in which statesmen lead with the guidance of experts and are made accountable to those parts of the public capable of meaningfully judging their results.”[3] That reads a tad like there are some members of the public from whom Wallach isn’t interested in hearing.

The Yes Minister joke goes, “If the right people don’t get power do you know what happens? The wrong people get it.”[4] But I am concerned less about the wrong people, and more about the existence of the power in the first place. James Madison wrote that if men were angels they wouldn’t need government;[5] and since they clearly are not angels, “statesmen” is not the label defining the kind of men that emerge in an unlimited power scenario. Nor, for that matter, do they emerge in today’s “pen and phone” scenario of unilateral executive action.[6]

Wallach asks, “Should we have allowed the administrative state into our common law home, so long ago?” He answers that we must settle for “disciplining and humbling the administrative state we have, not rerunning more than a century” of progressive rule by experts. I’m in favor of such incremental reforms, but I see the administrative state as authoritarian and irredeemable, and so I do want a “rerun.” Perhaps we can find a different “middle way” that doesn’t celebrate centrally managed health care at one extreme, and imposing dribble EPA gas cans and FDA serving sizes for breath mints at the other.

 

Rule of the Unelected

The abuses of the democratic “legitimacy crisis” cannot be described as accidental; they are conscious policy. President Barack Obama’s 2014 State of the Union pledge to use his “pen” and “phone” to implement a “year of action” with or without Congress became a taunt. Problems with a polluter? The EPA administrator said to “crucify them” to make them “really easy to manage.”[7]

The unelected do the bulk of lawmaking. Congress passed 114 bills last year that President Barack Obama signed into law. Outside the normal legislative process, though, agency regulations from the allegedly “most knowledgeable and healthy branch” numbered 3,410.

I call the large annual multiple the “unconstitutionality index.” Notionally, those rules undergo Administrative Procedure Act scrutiny, and the public gets ample time to comment. But over a third of agency rules are issued without a Notice of Proposed Rulemaking,[8] exploiting the “good cause” exemption by claiming notice is “impracticable, unnecessary or contrary to the public interest.”[9] Agency and Office of Management and Budget (OMB) cost-benefit analysis of the costliest subset does not actually exist; seven rules out of thousands had cost-benefit analyses in 2015, and 14 the year before.

Atop all this is what I’ve taken to calling “regulatory dark matter.” Agency memoranda, guidance documents, bulletins, circulars, notices (thousands annually), administrative interpretations, letters—a veritable galaxy of words—has become almost intractable and dispenses with democratic accountability altogether.[10] A Department of Labor blog post and “Administrative Interpretation” made many independent contractors employees;[11] New Housing and Urban Development guidance made landlord and home seller denial of those with criminal records a likely violation of the Fair Housing Act.[12] Some agencies have become self-contained little national governments, raising their own funds outside congressional oversight,[13] with bosses that even the president cannot remove.[14] Countless more examples could be added.

 

The Pretense of Expertise

Wallach also notes that some “argue that the best thing would be to make a clean break, chucking out such obsolete baggage as the Congress.” In short, the unification of executive and legislative power.

Shall we have an elected king? The technocrats are already willfully oblivious to the public.

The founders erected a different system, one recognizing the simple idea that most things are not public policy questions. Progressivism and the administrative state, the rule by experts, whatever one calls it, disagrees. As more of the economy falls to federal government rather than private sector management—retirement, medical choices, finance, insurance, energy, science funding and “manufacturing hubs,” critical infrastructure, control of lands and so on—the gap will grow. And progressives have done a good job entrenching themselves. Regulators have a gigantic head start in domineering frontier sectors like drones and driverless vehicles, since the government controls the airwaves and owns the roads, and will use that oh-so convenient fact to pander to emergent cronies.

Even as this “absolute imperious style”[15] threatens liberties and prosperity, administrators display a cavalier technocratic attitude. It’s not just that the FCC ought not turn the Internet into a utility via net neutrality, nor that public utilities enable rent-seeking or cronyism; rather it’s that the utility model—guaranteed profits and the prohibition of competition to replace competing networks—was the product of rent-seeking in the first place. (There may have been aesthetic problems with crowded wires, but not natural monopoly problems.)

Precision has never been the object of our minute federal regulations. It has been deployed chiefly to build the appearance of credibility. Few know that Competitive Enterprise Institute president Fred L. Smith Jr. was once a starry-eyed “planner” at EPA. Relating to me a joke symbolizing his transformation, he described the “young precise analyst” who proudly finished calculating results to four decimal places, as the older analyst looked over his shoulder and pointed to the estimate and proclaimed: “Son, I don’t know about the last decimal place, but your first one is wrong!”

 

Toward Solutions: Most Things Are Not Public Policy Questions

Wallach calls for iterative solutions. I like that, and I guarantee there are places we can meet. Valid, important approaches suggested in his broader work such as localism, justification, more agency scrutiny, and building congressional capacity relative to the executive branch are vital. But emphasis belongs too on what the Congress ought not be doing, not just what it should “do.”

Wallach hears and is sensitive to those frustrated with institutions and the disconnect between government and the citizen,  as for example when populists want to throw off the yoke but can worsen matters by creating a vacuum filled by still worse experts. Yet some “populists” on the right I’d argue do not wish to dismantle institutions. Rather they admire the institutions of limited government, and they voted Tea Party precisely to have them reestablished, a promise they have yet to see fulfilled. Wallach is right that imperfect politics can easily best imperfect populism.

Addressing a perceived libertarian “escapist” tendency, Wallach asks “how to get from here to there?” I have an answer: We start by not expanding government at each new frontier as is current practice. Again, government controls the airways but it doesn’t have to regulate drones under 1950s air traffic control; government owns roads but doesn’t have to regulate driverless cars or communications among them. Both are aggressively underway. Wallach also notes, skeptically, the libertarian wish for “anti-technocratic technocrats” to take charge and start streamlining. Yet the OMB’s Office of Information and Regulatory Affairs under Reagan was that, kinda sorta, and I bet Wallach and I could agree on a strengthened role for it in regulatory review and rule sunsetting.

Wallach respects the ideas of Professor Philip Hamburger, who accepts politics and a governing apparatus as a value rather than yielding to the populist vacuum. Hamburger would replace the administrative state with, well, Congress. When Hamburger calls today’s system a “return to our ‘preconstitutional past’” it’s a way of saying lawlessness. The Constitution was a deliberate repudiation of that, more than made clear by Hamburger when he said that the Constitution actually bans delegated power.

Wallach continues, “Indeed, the force of [Hamburger’s] argument relies on people understanding why democratic legislatures are superior bodies for decisionmaking relative to expert-led agencies.” But then: “To [Hamburger’s] credit, he acknowledges that this is sufficiently revolutionary as to feel somewhat quixotic”

But why? Why are classical liberal values quixotic? Enshrining constitutional values beyond just those that remain acceptable to modern liberalism shouldn’t be impractical. That voting to take property of a fellow citizen is today’s non-quixotic baseline speaks volumes. Even our hosts at the Cato Institute (my former haunt, by the way) called voter ignorance a threat to American democracy.[16] Of course, a remedy for excess and for voter ignorance is to make sure that government can’t do all that much damage, and that’s what the Constitution did.

Again, getting from here to there is a problem. But assume intervention is warranted; Wallach rightly proposes to “move our government’s center of gravity out of the administrative state” by challenging academic pieties and the arrogance of the ministers. He warns against partisanship in chiding us not to “blame Obama” and presumably thereby derail compromise. Fair enough, but one need only observe Obama’s own word about going around Congress, something alarming not merely to Obama’s detractors.[17] Congress should directly legislate wherever possible rather than tolerate open-ended agency regulation, or today’s dishonorable “informal” guidance. Confronting the obsolescence of decades-old statutes is a necessary, fundamental task, as David Schoenbrod has argued with respect to environmental regulation.[18]

Wallach wants evidence that Congress can “actually do the work of an intermediary.” If that’s the case, he might support the Regulations from the Executive In Need of Scrutiny (REINS Act).[19] Nothing in play now would go so far to make Congress directly accountable for what agencies do, in this instance by requiring a vote on “major” regulations. REINS would require owning up to major and controversial government mandates, and more importantly would change the calculus of future lawmaking. President Obama promises a veto, but I submit that you’ll stop hearing about REINS if Republicans keep congressional majorities and gain the presidency; entrenched regulatory rents may be too powerful for them.

Wallach observes that “If Congress actively demonstrates itself to be a body devoted to zero-sum posturing…a technocratic state [will] look relatively appealing.”  Yet anger is not directed only at the administrative state, but also at a Congress that cannot or will not stop it. The populist right’s perception is that Congress enabled the administration’s pursuits (spending, Obamacare), which is a big part of the “legitimacy crisis.” Such people aren’t tempted by agency technocrats; they want to see Congress get things undone, not get things done.

Wallach urges libertarians like me to join the call for “disciplining and humbling” the administrative state rather than “rerunning” some libertarian, non-technocratic past. I’m partly there, but the administrative state doesn’t even follow its own rules, and it’s getting worse with the rise of dark matter.

Still, I am certain we in this symposium shall find common ground on middle way, so to speak. Some of the past’s best proposals have required bipartisanship. Sen. Ted Kennedy helped drive transportation deregulation.[20] It was Lloyd Bentsen who proposed a regulatory budget,[21] an idea now in play again in the House Budget Resolution. It was Sen. Mark Warner who proposed a modest “one-in, one-out” for regulations, something being tried in Canada, the UK and the Netherlands. Whatever today’s disconnects, cooperation will occur again with urgency if the economy recovers more robustly and interest rates rise.

As we push Congress to take on its proper role, we might also attempt to enlist the executive. It certainly must be the case that if executive power is acceptable to progressives in 2016, it shall be so again in 2017. Reagan’s executive order 12291 brought rule counts and Federal Register page counts down by a third. We had a pen and phone that curtailed liberty, we can have “liberty’s meataxe” to expand it (within bounds). In 2012, for example, Mitt Romney urged passage of REINS, but vowed that if Congress didn’t he’d still forbid agencies to put rules in effect without Congress’s approval.[22]

Real “technocratic expertise” entails not curtailing liberty and substituting political choices for private ones, but discovering and extending institutions of liberty and voluntarism, and patrolling for ways to lessen the scope of the state in private concerns. Just for example, allocation systems for private property rights remain in their infancy (airsheds, watersheds, drone corridors, roadways, and intangible property) and require extension, not the obliteration they get at the hands of administrative bureaucracy. Such is the challenge of expertise in complex modern society: not to pretend to run things efficiently, but to help make sure healthy institutions enable the rest of us to do so.

 
 
Notes
   


[1] Elahe Izadi, “Say Hello to our First National Mammal,” Washington Post, April 29, 2016. https://www.washingtonpost.com/news/animalia/wp/2016/04/27/how-the-bison…

[2] Hans F. Sennholz, ed., The Wisdom of Henry Hazlitt, (Irvington-on-Hudson, New York: Foundation for Economic Education, 1993), p. 165, https://mises.org/library/wisdom-henry-hazlitt.

[3] Phillip Wallach, “The Administrative State’s Legitimacy Crisis,” Brookings Institution, Center for Effective Public Management, April 2016, p. 2. http://www.brookings.edu/~/media/research/files/papers/2016/04/20-administrative-state-wallach/administrative-state-legitimacy-crisis_final.pdf.

[5] The Federalist No. 51

[6] Remarks by the President and the Vice President at U.S. Conference of Mayors Reception, The White House, January 23, 2014, https://www.whitehouse.gov/the-press-office/2014/01/23/remarks-president-and-vice-president-us-conference-mayors-reception.

[7] Andrew Restuccia, “EPA official apologizes after comparing his work to crucifixion,” The Hill.

April 26, 2012. http://thehill.com/blogs/e2-wire/e2-wire/223921-epa-official-apologizes-for-comparing-enforcement-of-environmental-laws-to-crucifixion.

[8] U.S. Government Accountability Office, Federal Rulemaking: Agencies Could Take Additional Steps to Respond to Public Comments, GAO-13-21, December 2012, http://www.gao.gov/assets/660/651052.pdf.

[9] P.L. 79-404. Section 553.

[10] Clyde Wayne Crews Jr., “Mapping Washington’s Lawlessness: A Preliminary Inventory of Regulatory Dark Matter,” Issue Analysis 2015 No. 6, December 2015,
https://cei.org/sites/default/files/Wayne%20Crews%20-%20Mapping%20Washin….

[11] David Weil, “Employee or Independent Contractor?” U.S. Department of Labor Blog, July 15, 2015, https://blog.dol.gov/2015/07/15/employee-or-independent-contractor/; and Weil, “The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the Identification of Employees Who Are Misclassified as Independent Contractors,” Administrator’s Interpretation No. 2015-1, U.S. Department of Labor, Wage and Hour Division, July 15, 2015, http://www.dol.gov/whd/workers/Misclassification/AI-2015_1.pdf.

[12] U.S. Department of Housing and Urban Development, Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions, April 4, 2016, http://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf.

[13] Christopher DeMuth Sr. & Michael S. Greve, “Agency Finance in the Age of Executive Government,” Working Paper, March 2, 2016. http://administrativestate.gmu.edu/wp-content/uploads/2016/03/DeMuth-Gre….

[14] News Release, “Dodd-Frank Unconstitutional Power-Grab, Says New Lawsuit,” Competitive Enterprise Institute, June 21, 2012. https://cei.org/news-releases/dodd-frank-unconstitutional-power-grab-say….

[15] Appearing in Paul Leicester Ford, Essays on the Constitution of the United States Published During Its Discussion by the People, 1787-1788. Brooklyn, N.Y., Historical Printing Club. 1892. The Project Gutenberg EBook of Essays on the Constitution of the United States by Paul Leicester Ford http://www.gutenberg.org/files/31891/31891-h/31891-h.html.

[16] Ilya Somin, “When Ignorance Isn’t Bliss: How Political Ignorance Threatens Democracy” Cato Institute Policy Analysis No. 525, September 22, 2004. Somin http://object.cato.org/sites/cato.org/files/pubs/pdf/pa525.pdf.

[17] Written Statement of Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University, “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws,” Committee on the Judiciary, United States House of Representatives, February 26, 2014. http://jonathanturley.files.wordpress.com/2014/02/turley-enforcement-testimony.pdf.

[18] See David Schoenbrod, “How REINS Would Improve Environmental Protection,” 21 Duke Environmental Law and Policy Forum, 347-365. 2011. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1033&context=delpf.

[20] For example, see Chapter 3, “Why the Regulators Choose to Deregulate” and Chapter 4, “The Strength of Reform Forces In Congress,” in Martha Derthick and Paul J. Quirk, The Politics of Deregulation, Brookings Institution: Washington, D.C. 1985.

[21] Congressional Record, Vol. 125, March 5, 1979, p. S 2024.

[22] Believe in America: Mitt Romney’s Plan for Jobs and Economic Growth, 2011. p. 63.

Farewell to the Administrative State?

Lead Essay
May 2, 2016

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.

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.[1] 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.[2]

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.

 

Populist Escapism

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.”[3] 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.[4] 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.

 

Libertarian Escapism

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.[5] 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.

 

Accepting Politics

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?”[6] 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.[7]

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.[8]

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.

 

Accepting Incrementalism

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.”

 

Notes


[1] 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).

[2] 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).

[3] Steven Bilakovics, Democracy without Politics (Cambridge, MA: Harvard University Press, 2012), 19.

[4] 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).

[5] Charles Murray, By The People: Rebuilding Liberty Without Permission (New York: Crown Forum, 2015).

[6] Philip Hamburger, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014).

[7] 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).

[8] Hamburger, Is Administrative Law Unlawful?, p. 344.

Coming Up

Responses byJohn Hasnas, May 8; and Adrian Vermeule, May 12. Conversation to continue through the end of the month.

Related at Cato