A Love-Hate Relationship with Congress

Philip Wallach’s reply (“Our Simmering Crisis”) to my earlier defense of the administrative state (“What Legitimacy Crisis?”) helpfully clarifies some points of disagreement. I will focus on two. But I will ignore Wallach’s suggestion of an inconsistency on my part, insofar as I elsewhere defend expansive executive government. The suggestion misunderstands the logic of our conversation. While I don’t share his premises about the desirability of congressional government, I am willing to argue within his framework. I argue, in other words, that conditional on accepting Wallach’s premise that congressional government is in fact desirable, he should actually admire the administrative state, for the administrative state is Congress’s own beloved offspring, with whom Congress is well-pleased. There is no inconsistency between “Given your premises X, you should think Y” and “My premises are -X.”

Now to the merits. The first point of disagreement, I think, is that Wallach doesn’t seem clear in his own mind whether there is (1) a public consensus in favor of the legitimacy of the administrative state; (2) a (growing) public consensus against the legitimacy of the administrative state; or (3) a polarized public dissensus on the question. His first essay (“Farewell to the Administrative State”) hovered between (1) and (2), suggesting both that there is a growing legitimacy crisis, and yet also that “we live in a democracy full of fellow-citizens who think that ‘crucial functions’ [of government] are very extensive indeed.” His reply hovers between (2) and (3), suggesting both that there is a widespread albeit “simmering” sense of illegitimacy, and also that Congress is polarized on the question due to partisan disagreement, and thus is unable to legislate with greater force and clarity to check and monitor the executive. These possibilities are in severe tension with one another, because one thing Congress is tolerably good at is responding with alacrity to a widespread sense of anything. If Congress is paralyzed, it is often evidence, though not ironclad evidence, of deep public disagreement. So I wish Wallach would spell out his descriptive assumptions more clearly, although I suppose it is too late in the dialogue for that. My own view, of course, is (1). I think the broad mass of the public is quite accepting of the administrative state, largely because administrative government has raised public welfare dramatically. Indeed the most striking feature of politics 2016 is that the winning candidates in both parties are clearly comfortable with a robust administrative state. The opposition to it stems mostly from a small set of more-or-less libertarian policy intellectuals and lawyers, and an even smaller set of judges they have influenced.

The second point of disagreement is whether congressional delegation of authority to agencies, over time, has been “too broad” or “too discretionary” in some sense. I never understand what this means, especially in the mouth of those who otherwise favor congressional lawmaking as the putative alternative to administrative government. What’s the baseline for thinking that delegation is “too” broad? I suggest the following criterion: if the constitutional scheme of separated powers and its unique institutional attributes make Congress the preferred lawmaker (and again, this is a strictly conditional point for the sake of argument - I do not think those things), then the presumption ought to be that Congress delegates authority when and to the extent that it is wise to do so. There is no independent constitutional criterion of desirable breadth or clarity or what-have-you.

Beneath and behind these tensions there lies a central unresolved tension in Wallach’s view, one that runs through many critiques of the administrative state. It is a kind of love-hate relationship with Congress. On the one hand, Congress has failed systematically in its duties, leaving the administrative state to grow unchecked. On the other, the remedy is for … Congress to do better. But if the diagnosis is correct, why should we have any faith in the prescription? If Congress fails, not randomly but systematically, why should we think it will be capable of correcting its own pathologies, any more than a person could pull herself up by her own shoelaces?


Also from this issue

Lead Essay

  • 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

  • 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.

  • 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.

  • 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.