In The Administrative State, Dwight Waldo's study of the bureaucratic form, Waldo observes during the Progressive Era, "The traditional separation of powers became the bete noir of American political science," increasingly set aside in favor of "exaltation of the powers of the executive branch."
The three-part mechanism contemplated by the Constitution was an old-fashioned impediment to scientific government, to be helmed by experts who know better than the squabbling rubes in Congress. Undergirded by faith in scientific progress, the idea was that government, the economy, and society itself could be managed more effectively by experts.
The administrative state of these Progressive Era dreams has largely been brought to fruition and now is enormous in size, impacting almost every area of life and employing an army of bureaucrats. Through his executive orders, President Trump has signaled a willingness to reconsider the role of the federal regulatory state and its mountains of administrative rules.
Cast in broad and general terms, acts of Congress leave plenty of room for administrative discretion, expressed in the tens of thousands of regulations that spill forth from federal agencies every year. The Competitive Enterprise Institute's conservative estimate of the yearly cost of federal regulations alone (i.e., not accounting for state-level regulations) puts the number at more than $1.9 trillion, which is roughly one-tenth of the country's gross domestic product.
A statute as passed will set forth a general goal, and the executive branch will be charged with implementing its terms, a system that in practice delegates to unelected bureaucrats the power to make law. In theory, a legal principle called the nondelegation doctrine prevents this as an unconstitutional breach of the Constitution's separation of powers. In practice, the administrative state — or the fourth branch — now exercises legislative and judicial powers, in addition to its executive powers.
The philosophical assumption at the heart of this system of executive overreach is the idea experts are better equipped to parse the minutiae of specific policy questions and are better educated and trained to recognize the correct course of action. Although innocent enough in theory, this assumption fails to account for certain flaws in the mechanism, for problems surrounding both incentives and information.
First, the progressive administrative state simply assumes executive branch bureaucrats are fundamentally different from the rest of us — that they are beyond ordinary self-interest, possessed of a kind of Borg mind, automatically devoted to the common good. It turns out regulators are not insusceptible to pressure groups' attempts to influence the process. The economic way of thinking teaches that, in general, people respond to incentives. Public choice theory is based on sophisticated refinements of this insight and extrapolations therefrom, but the insight itself is nowise new and long predates the modern administrative state.
The largest corporations have become adept at operating within this quasi-legislative framework; they understand regulatory power and leverage it to their advantage against smaller competitors. Using this strategy, the most powerful firms have taken hold of the administrative state, the result being more concentrated market power in the most highly regulated industries. In short, corporate monopolies have grown stronger under the anti-competitive conditions of the rule-saturated American economy.
The executive branch has also usurped judicial power; it operates its own administrative law courts, which function quite outside the judiciary and its standards of due process. As leading legal scholar and administrative law expert Philip Hamburger puts it, the modern administrative state has thus transformed "our fundamental procedural freedoms" into "mere options."
A free society cannot survive such concentration of power. By removing lawmaking from the sphere of even the scintilla of accountability represented by elections, the administrative state undercuts the rule of law itself; law becomes merely the arbitrary whim of the regulator. The English word arbitrary comes from the Latin arbiter, meaning "judge" or, more specifically and literally, "one who goes to a place to act as a judge." What distinguishes the arbitrary decision, then, is not necessarily that it is wrong, only that it is based solely on the will of the decision-maker.
This is the kind of unaccountable power to which classical liberalism addressed itself, reimagining the individual as a citizen with rights, not a subject for whom any "right" is really only a privilege granted at the discretion of someone in power. Such arbitrary power, though extremely dangerous to the individual citizen, presents powerful special interests with certain opportunities.
As Hamburger points out, this should not be a left or right issue. Republicans and Democrats alike ought to take seriously the threat to liberty posed by the administrative state, welcoming reforms regardless of their source.
David S. D'Amato (firstname.lastname@example.org) is an attorney, adjunct law professor at DePaul University in Chicago, and a policy advisor at The Heartland Institute, a free-market think tank headquartered in Arlington Heights, Illinois.
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