RealClearPolicy Newsletters: Original Articles

Confronting the Administrative Threat

Confronting the Administrative Threat
AP Photo/Pablo Martinez Monsivais, File

Dear Reader —

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 Administrative Threat, which encapsulates for a wider readership the arguments developed at length in his scholarly 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. “Most fundamentally,” however, the administrative state threatens the “civil liberties of every American” by enforcing its laws not through the judiciary, but through a kind of parallel court system within administrative agencies themselves. Hamburger see this as a flagrant denial of our due process rights and “the most serious threat to civil liberties in our era.”

Philip Hamburger makes his case in Episode 2 of our podcast series: “Confronting the Administrative Threat.” The discussion also touches on the monarchical concept of absolute power, democratic theory, and the influence of German political philosophy on American progressivism.

These are some of the many issues taken up at RealClearPolicy over the past week. Below you will find just a few highlights.

— M. Anthony Mills, editor | RealClearPolicy


Back to the Center, Democrats. In The New York Times, Mark Penn and Andrew Stein urge Democrats to resist “the siren calls of the left.”

The Problem with Participatory Democracy Is the Participants. Also in The New York Times, Eitan D. Hersh warns of the dangers of treating politics as a “leisure activity,” rather than a “civic duty.”

What’s the Point of an Anti-Immigrant Left? Vox’s Dylan Matthews critiques a recent proposal for Democrats to adopt a more conservative approach on immigration.

Bots Go to Washington. In our own pages, Sarah Oh and Brandon Silberstein suggest how the FCC can make its electronic comment system more secure.

Place Matters. In The American Prospect, Harold Meyerson argues progressives must adopt “economic development strategies for the left-behind regions of the country.”

Can Americans Be Trusted to Govern Themselves? In Library of Law & Liberty, Joseph Postell makes a case for reclaiming the “institutional mechanisms that foster deliberation, compromise, and consensus by representing diverse interests and views.”

A Call for Greater Regulatory Harmony with Canada. Also in our pages, Sean Speer and Kevin R. Kosar make their case here.

Were the Hardliners Right on Immigration? In Commentary, Noah Rothman highlights some results of the Trump administration’s immigration policies.

Stop Obsessing Over Race and IQ. In National Review, John McWhorter casts doubt on the fruitfulness of current debates about race.

Innovation Can Help Bridge the Digital Divide. Also in RealClearPolicy, Johnny Kampis spotlights new technologies that may help bring Internet connectivity to rural areas.

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