May 2016

The U.S. Constitution establishes a republican form of government. It places all legislative authority in the U.S. Congress, a democratically elected representative body. From the document’s text, one would hardly guess that nowadays executive regulatory agencies make most U.S. laws, and that Congress has authorized them to act in this manner. Regulations enacted by the executive now dwarf those enacted by Congress, and one may legitimately wonder: In what sense does legislative authority still belong to the legislature? Are the people’s representatives still in charge? Do we even have a republican form of government, when unelected regulators almost always get to act as they see fit?

In short, the administrative state is facing a legitimacy crisis. That’s true both in the United States and in many other countries, where executive rulership has come more and more to perform the day-to-day chores of legislating, even while democratic elections continue and while politics on the surface seems more or less normal.

These are not merely the concerns of strict constructionists, either. The appearance of legitimacy, and its reality, are important to all who have a stake in the American political system. Writing this month’s lead essay is Philip Wallach of the Brookings Institution. Responding to him will be Clyde Wayne Crews of the Competitive Enterprise Institute, Professor John Hasnas of Georgetown University, and Professor Adrian Vermeule of Harvard Law School. After each has written, the conversation will continue for the rest of the month, and readers are invited to offer comments as well.

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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.

Related at Cato

Cato Policy Report: ”The Criminalization of Almost Everything,” with Tim Lynch and Harvey Silverglate, January-February 2010

Cato at Liberty:How Far Can Congress Delegate Its Legislative Authority?” by Roger Pilon, June 23, 2014 

Regulation Magazine:Using Delegation to Promote Deregulation,” by Michael B. Rappaport, Winter 2015-16