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Until recently, criticisms of the administrative — or “regulatory”— state tended to focus on economics. Beginning especially in the Reagan years, critics from the Right and Left denounced the growing regulatory burden imposed by the federal bureaucracy on American businesses, culminating, perhaps, in Bill Clinton’s announcement that “the era of big government is over.”

In the past few years, however, conservatives have begun to emphasize the constitutional problems posed by the administrative state. A key figure in this constitutional turn is Philip Hamburger, a prominent legal scholar at Columbia Law School and author of the widely discussed book Is Administrative Law Unlawful? Hamburger argues that “the focus on economics” is an “error” in “resisting the administrative state,” since it implicitly accepts the “legitimacy of administrative power,” at least insofar as it is “not too heavy-handed on business.” However important, the economics consequences of burdensome regulations are “secondary” to the underlying constitutional concerns. 

Yet, even many of today’s constitutional critiques do not get to the root of the matter, Hamburger insists. Thus a second error: to focus exclusively on the ways in which the administrative state violates the separation of powers between the three branches of government. The administrative state does violate the separation of powers, according to Hamburger, by usurping both the power to create and the power to interpret federal law, which are reserved for the legislature and the judiciary, respectively. But, “most fundamentally,” the administrative state is dangerous because it threatens the “civil liberties of every American” by undermining our due process rights. Hamburger calls this “the most serious threat to civil liberties in our era.”

Such is the thesis of Hamburger’s new book, The Administrative Threat, which encapsulates for a wider readership the arguments developed at length in his scholarly work. It is also the topic of the second episode of our new podcast series, “The Future of the Administrative State”:

Hamburger defines the administrative state as the “creation of a power to bind us with rules…that are not made by Congress.” This “administrative power” is inherently unconstitutional because, Hamburger argues, the power to create binding law or obligation — as opposed to the power to dispense benefits or privileges — is invested by the Constitution in the legislature alone. Even worse, these laws are often enforced through “miniature courts” within administrative agencies that have their own administrative law judges (ALJ). And this violates not only the separation of powers but also our due process rights: 

When an administrative agency adjudicates that you’ve violated some regulation and, instead of going through a court, has an ALJ decide this…you don’t get your day in court, you don’t get a real judge (you get an administrative employee), you don’t get a real jury. Your jury rights just disappear…[and] the burdens of proof and persuasion and all the other requirements of due process just disappear.

Of course, administrative cases can be heard in — or appealed to — regular courts. But the essential point for Hamburger is that the government can choose whether to enforce a law using the traditional, constitutional mechanisms of the judiciary or this parallel judicial system within the executive branch. “The result,” he argues, is that “our procedural rights in the Bill of Rights have become not guarantees but have turned into mere options for government power.” 

One rationale for this state of affairs is an argument from necessity. It is “necessary” to outsource adjudication, defenders of the administrative state will say, because “the courts can’t handle the burden” on their own. More generally, some argue that administrative power is necessary for the government to respond swiftly and effectively to the complex and urgent problems faced by modern society. But necessity, Hamburger retorts, “has always been used by absolute rulers to justify more or less anything.” Far from being something new or wholly “[un]familiar to the founders” of the United States, administrative power revives the old concept of absolute power of kings — the prevention of which was the Constitution’s very raison d’être.

Hamburger traces American notions about administrative power back to 19th-century German political thought, including the ideas of G.W.F. Hegel and the nationalist Heinrich von Treitschke, which influenced progressives like Woodrow Wilson in the early 20th century. Especially worrisome, Hamburger notes, is the anti-democratic — and, in Wilson’s case, even racist — undercurrent to defenses of administrative power. Bureaucratic governance purports to replace the messy and inefficient realities of democratic self-governance with the allegedly scientific — and therefore rational and efficient — administration of the “knowledge class.”

What can be done to reverse this trend and revitalize the properly constitutional mechanisms of self-government? Hamburger concludes that “we have to get rid of the administrative state.” But, he emphasizes, “we have to do it in a very reasonable way.” We can do so by reviving congressional oversight and dismantling the administrative law courts “step by step.” Hamburger concedes this may not be easy. But “I can’t help thinking all Americans will tend eventually to recognize” that what’s at issue here is not partisan politics or the “substance of policy” so much as our “basic constitutional rights,” and will “therefore want to limit the administrative state.”

 M. Anthony Mills is editor of RealClearPolicy.

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