In the Ballpark of Political Action

My previous posting seemed to distract our conversation from its focus on the administrative state due to my unwillingness play in the political ballpark. Let me see whether I can do better this time.

I will assume that we must live under the present governmental configuration in which the realm of collective choice is extremely wide-ranging, that much of the collective choice decisionmaking takes place in executive bureaucracies–i.e., the administrative state, and that the only action we may consider to change this situation is political action–action that can be taken within the current governmental structure.

Working within these confines, I would favor a result that shifted decisionmaking authority away from the executive bureaucracy and toward the members of Congress. The problem is that in my first posting I suggested that this was not feasible. There I pointed out that “[t]he more areas of human life that move into the realm of collective choice, the more necessary non-elected economic, scientific, and other experts become to implement any such decisions.” I now would soften that assertion a bit. What I should have said was that the more areas of human life that move into the realm of collective choice, the more necessary non-elected economic, scientific, and other experts become to implement any such decisions effectively.

For present purposes, let’s ignore the entire field of public choice economics. Let’s ignore the problems of regulatory capture, of the divergence between the agendas of elected officials and professional bureaucrats, and the lack of any price structure to rationalize the use of public resources. Let’s merely observe that there are only 535 federal legislators. Even with all their staffs, there is a limit to how much they can do. The human capital available to Congress could never approach that available to the executive bureaucracy. Further, because Senators and Representatives must address the entire range of issues that come before Congress, none of them can specialize, and there is a limit to how much they can allow their staffs to specialize. Finally, in a government with partisan divisions, the efforts of the members of Congress and their staffs will often pull in opposite directions, significantly reducing the effectiveness of any policymaking.

In other words, if policymaking must reside in the legislative branch, there is a limit to how much can get done. In the absence of any meaningful constitutional restraints, the physical limitation on the size of Congress and the inefficiencies inherent in democratic politics place an outer bound on the government’s regulatory power. This provides some limit to the realm of collective choice, which in my opinion is a good thing.

This may appear to be mere idle speculation, given my previous statement that I see no way to roll back the administrative state through electoral politics. But electoral politics is not the only form of political action. One can operate within the confines of the current governmental structure by advocating judicial action as well. And all that is really required to roll back the administrative state would be for the Supreme Court to reinvigorate the non-delegation doctrine last seen in  A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

One of the protections that was supposed to be built into the structure of the Federal government was the separation of powers. The idea was that individual liberty would be better preserved if government power were divided into three separate and distinct functions–the legislative, executive, and judicial–that were administered by different branches of government. Thus Article 1, section 1 states, “All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.” Until 1935, the Supreme Court interpreted this to mean that Congress could not delegate its lawmaking authority to the executive branch of government. Unfortunately, the Court abandoned enforcement of the non-delegation doctrine, which enabled the massive shift in rulemaking authority into the executive bureaucracy that we are discussing today.

So one way to rein in the administrative state would be to convince the Court to start enforcing the non-delegation doctrine again. Now, one objection to this proposal might be that it is unrealistic. There is no way the contemporary Court is going to revive this long dormant legal doctrine. But such an objection would be unfair. By hypothesis, we are playing in the ballpark of political action. And, as far as I can tell, in this ballpark wishful thinking is standard operating procedure–e.g., raise the minimum wage and end poverty, enact Obamacare and bend the cost curve, invade Iraq and spread democracy, build a wall and make America great again. Calling a proposal for political change unrealistic could not distinguish it from any other proposed political action.

Further, it certainly has to be easier to change a few minds on a nine-member judicial panel than it would be to educate the public about the difference between legislative and executive rulemaking. The Obama administration has made it clear that it believes that it is empowered to act whenever Congress will not. If the current Presidential campaign is any indication, the public loves this idea. There certainly is no groundswell of sentiment for putting more power into the hands of the endlessly squabbling and endlessly grid locked legislature.

I had intended to write a bit more, but I just read Clyde Wayne Crews’s most recent posting. Because I do not think I can do better than that, I will subside.

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.