How can a government be prevented from falling into tyranny? The question is ancient. Our modern republic answers it by securing the people’s rights against federal power. Thus the Constitution imposes limits on the federal government, chief among which is the separation of powers, preventing the executive from arrogating to itself the power of creating, interpreting, and enforcing — in addition to executing — laws. No surprise that fears over executive overreach date back to our country’s earliest days and remain with us today.
During the Bush years, liberals criticized the expansion of executive power under the auspices of national security; conservatives homed in on President Obama’s use of executive agencies to enact domestic policy. Today, conservatives and progressives alike fear the consequences of an expanded executive under President Trump. Meanwhile, White House Chief Strategist Steve Bannon has said that one of the primary goals of the administration is the “deconstruction” of the administrative state — the president’s most effective tool for exercising power in domestic affairs.
What, exactly, is the administrative state? Where did it come from? What is the proper balance between legislative, executive, and judicial powers? And how might our current system be reformed so as to make it work more effectively? Such are the topics of our podcast “The Future of the Administrative State,” in which we sit down with six leading authorities from across the political spectrum to discuss the nature of administrative power and what it means in the Trump era.
In the first episode, the Hoover Institution’s Adam J. White breaks down the concept of the administrative state. He argues the term can either refer to the collection of executive agencies empowered to execute the laws passed by Congress or “a general approach to governance in the United States” according to which “the federal laws that govern us on a day-to-day basis come not from Congress with the president’s signature, but from this massive set of agencies.” In this latter sense, the administrative state constitutes an “alternative to the Constitution’s framers’ vision of republican self-governance, governance through the elected branches of government under the rule of law.”
In the second episode, Columbia Law School’s Philip Hamburger argues that discussions of the administrative state too often “focus on economics.” However important, the economic consequences of regulations are “secondary” to the constitutional problems posed by administrative power. What are those problems? Even worse than the violation of the separation of powers, Hamburger argues, is the fact that the administrative state robs Americans of their due process rights by enforcing regulations through extra-constitutional administrative courts. This he calls “the most serious threat to civil liberties in our era.”
In Episode 3, Paul Verkuil, former chairman of the Administrative Conference of the United States and senior fellow at the Center for American Progress, makes a positive case for the administrative state. He concedes that the federal bureaucracy is often ineffective and inefficient. But this is because it is too small, not too big, relative to the demands we place on it. What has filled the gap? Private-sector contractors, who increasingly carry out “inherent government functions.” Thus, Verkuil thinks, the real constitutional problem is oversight not of the administrative state but of what he calls the “contractor state.”
In our fourth episode, Nicholas Bagley, a professor of law at the University of Michigan, argues that contemporary critiques of executive power miss the mark. He does not see a constitutional problem with the delegation of legislative power to executive agencies. And, like Verkuil, he believes the way to reform our current system is not to weaken agencies, but to empower them to carry out their duties more effectively. This requires better oversight, Bagley concedes. But that is the role of the legislative and executive branches, not the judiciary. Hence we do not need more “judicial review” of administrative action; we need more “judicial humility.”
In Episode 5, Elaine Kamarck of the Brookings Institution makes a case for fixing rather than abandoning the administrative state. We should begin, she thinks, by reforming the civil service to keep up with our digital era. Kamarck shares reformist concerns about the effectiveness of the administrative state. But she also agrees with conservatives that Congress has grown too weak relative to the executive and blames Congress for this state of affairs. Ultimately, Kamarck thinks that to reform the administrative state we must clarify what it is we think the federal government — as opposed to state and local governments or the private sector — should or should not be doing in the first place.
In sixth and final episode, John Marini of the Claremont Institute echoes Adam White and Philip Hamburger by arguing that centralized bureaucracy has displaced the founding fathers’ vision of a constitutional republic. This transformation, which has roots in 19th century German philosophy, took place over the course of the 20th century. During that period, our political institutions — e.g., political parties, Congress, and civil institutions — all grew weaker as the administrative state expanded to fill the void. Marini thinks that Trump instinctively understood this, appealing to a citizenry dissatisfied with Congress and frustrated by the power of the administrative state and its special interests.
There is little reason to think the underlying philosophical disagreements exemplified by these diverse scholars will be resolved. Indeed, disagreements about the size and scope of the federal government — and the executive in particular — have animated our politics since our country’s violent birth. This makes the many points of convergence among their perspectives all the more striking.
There appears to be something of a consensus on at least three levels. First, our federal government does not function as well as it should — and the administrative state is a significant part of the reason why. In particular, there is insufficient and ineffective oversight of administrative agencies. Second, this state of affairs is at least in part the fault of Congress, which has weakened its own power over the decades. Third, there is no simple legislative, administrative, or judicial cure for what ails our government. The solution to our political dysfunction must begin, as Bagley puts it, “with the ballot box” and the representative branches of government.
So while we may disagree about the proper role of the executive, we may nevertheless agree about the need to reinvigorate the mechanisms and institutions of self-governance. But to salvage self-government requires cultivating the virtues of self-governance — no small task. Perhaps Marini is right that Trump, whatever we may think of him, has provided something of a wake-up call for our citizenry, highlighting the stakes of the administrative state and the precarious nature of our founders’ political achievement.