Philip Hamburger was writing about the “deep state” well before that coinage became popular. Through a series of essays and books – especially his 2014 study, “Is Administrative Law Unlawful?” – the Columbia Law School professor has argued that the growing scope and reach of the unelected and largely unaccountable federal bureaucracy is an unconstitutional threat to liberty and democracy.
Now he has consolidated his insights into a short work, “The Administrative Threat” (Encounter Books). In it he draws a straight line from the idea of the absolute power of kings – which the Framers expressly sought to negate when they wrote the Constitution – to the executive branch’s assertion of broad rulemaking authority. He then argues that a shadow court system with built-in conflicts of interest has arisen to adjudicate many claims within this shadow government, one that often denies basic constitutional protections.
In this excerpt from the end of his new book, Hamburger connects the rise of the administrative state to the expansion of voting rights since the Civil War, before considering ways the power of government's so-called "fourth branch" might be restricted or reversed.
To understand how profoundly administrative governance threatens civil liberties, consider the growth of equal suffrage and the expansion of administrative power. Voting rights and the administrative state have probably been the two most remarkable developments in the federal government since the Civil War. It therefore is worth pausing to ask whether there is a connection.
Federal law was slow to protect equal suffrage. In 1870, the Fifteenth Amendment gave blacks the right to vote. In 1920, women acquired this right. And in 1965, the equality for blacks began to become a widespread reality.
Administrative power tended to expand in the wake of these changes in suffrage (a curiosity first noted by Thomas West). In 1887, Congress established the first major federal administrative agency, the Interstate Commerce Commission. In the 1930s, the New Deal created a host of powerful new agencies. And since the 1960s, federal administrative power has expanded even further. Of course, it would be a mistake to link administrative power too narrowly to the key dates in the expansion of suffrage. But growing popular participation in representative politics has evidently been accompanied by a shift of legislative power out of Congress and into administrative agencies.
The explanation is not hard to find. Although equality in voting rights has been widely accepted, the resulting democratization of American politics has prompted misgivings. Worried about the rough-and-tumble character of representative politics, and about the tendency of newly enfranchised groups to reject progressive reforms, many Americans have sought what they consider a more elevated mode of governance.
Some early progressives were quite candid about this. Woodrow Wilson complained that “the reformer is bewildered” by the need to persuade “a voting majority of several million heads.” He was particularly worried about the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” Elaborating this point, he observed: “The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes.”
Rather than try to persuade such persons, Wilson welcomed administrative governance. The people could still have their republic, but much legislative power would be shifted out of an elected body and into the hands of the right sort of people.
Rather than narrowly a matter of racism, this has been a transfer of legislative power to the knowledge class – meaning not a class defined in Marxist or other economic terms but those persons whose identity or sense of self-worth centers on their knowledge. More than merely the intelligentsia, this class includes all who are more attached to the authority of knowledge than to the authority of local political communities. Which is not to say that they have been particularly knowledgeable, but that their sense of affinity with cosmopolitan knowledge, rather than local connectedness, has been the foundation of their influence and identity. And in appreciating the authority they have attributed to their knowledge, and distrusting the tumultuous politics of a diverse people, they have gradually moved legislative power out of Congress and into administrative agencies – to be exercised, in more genteel ways, by persons like . . . themselves.
The enfranchised masses, in short, have disappointed those who think they know better. Walter Lippmann worried that “what thwarts the growth of our civilization is . . . the faltering method, the distracted soul, and the murky vision of what we grandiloquently call the will of the people.” More recently, Peter Orszag urges that “bold measures are needed to circumvent polarization” – in particular that America needs to overcome the resulting “gridlock of our political institutions by making them a bit less democratic.”
Of course, the removal of legislative power from the representatives of a diverse people has implications for minorities. Leaving aside Wilson’s overt racism, the problem is the relocation of lawmaking power a further step away from the people and into the hands of a relatively homogenized class. Even when exercised with solicitude for minorities, it is a sort of power exercised from above, and those who dominate the administrative state have always been if not white men, then at least members of the knowledge class.
It therefore should be no surprise that administrative power comes with costs for the classes and attachments that are more apt to find expression through representative government. In contrast to the power exercised by elected members of Congress, administrative power comes with little accountability to – or even sympathy for – local, regional, religious, and other distinctive communities. Individually, administrators may be concerned about all Americans, but their power is structured in a way designed to cut off the political demands with which, in a representative system of government, local and other distinctive communities can protect themselves.
Administrative power thus cannot be understood apart from equal voting rights. The gain in popular suffrage has been accompanied by disdain for the choices made through a representative system and a corresponding shift of legislative power out of Congress. Although the redistribution of legislative power has gratified the knowledge class, it makes a mockery of the struggle for equal voting rights and confirms how severely administrative power threatens civil liberties.
Is It Practicable to Abandon Administrative Power?
Although administrative power is the nation’s preeminent threat to civil liberties, many commentators worry that the nation cannot get along without it. In fact, the resulting economic problems suggest that the nation cannot afford to retain administrative power. But even so, it remains to be considered whether government is practicable without it.
For example, is administrative power the only means of rapid legislative change? Actually, when Congress wishes, it can act faster than most agencies, while relying on their expertise. Popular complaints about congressional “gridlock” therefore do not usually reflect the realities of institutional impediments, but instead typically serve to justify circumventing the political obstacles inherent in representative government.
Let’s pretend, however, that gridlock is an institutional rather than a political impediment. How much administrative power actually involves genuine emergencies – matters that simply cannot wait for Congress to act? In fact, most administrative power effectuates long-term policies, and most claims of emergencies are merely excuses to shift power out of Congress.
Does complexity require administrative power? Federal statutes obviously can be just as complex as agency rules. The only difference is that statutes are adopted by Congress rather than by agencies.
Even if rules were adopted by Congress rather than agencies, how would the courts be able to handle the vast amount of adjudication currently handled by agencies? Apologists for administrative power protest that there are over ten thousand administrative adjudicators whose work could not be handled by the courts. But the vast bulk of such adjudication does not impose legal obligation. Thus, rather than administrative power, most such adjudication is merely the ordinary and lawful exercise of executive power – for example, in determining the distribution of benefits or the status of immigrants.
In fact, outside the Social Security Administration, which distributes benefits, there are only 257 administrative law judges. This is not an overwhelming number, and it suggests that the scale of administrative adjudication is grossly overstated. The work of at least these 257 administrative law judges could easily be handled with the addition of an equivalent number of real judges.
What about the value of impartial administrative expertise? It is not clear that agencies have greater expertise than the private sector. Indeed, industry has much influence over agency regulation in part because of industry’s greater knowledge. Some agencies are so short of expertise that they rely on regulated industries to write the regulations – as happened, for example, with the 2010 net neutrality rules.
More generally, expert knowledge must be distinguished from expert decision making. A decision to adopt a regulation in one area of expertise will almost inevitably have consequences in other fields of knowledge, and expertise in the one area is therefore not enough to resolve whether the regulation should be adopted. Indeed, a person with specialized expertise will tend to overestimate the importance of that area and underestimate the significance of others. As a result, although experts can be valuable for their specialized knowledge, they usually cannot be relied upon for decisions that take a balanced view of the consequences. This is why administrative power so frequently seems harsh or disproportionate: the administrative experts focus so closely on what they care about that they fail adequately to see other aspects of the question. It therefore makes sense to get the views of experts, but not to rely on them for decisions about regulation.
Ultimately, the question as to whether the government can get along without administrative power should be answered by its proponents. The arguments about the need for administrative power are empirical, and those who assert the need to depart from the Constitution must bear the burden of proof. Nonetheless, the advocates of administrative power rarely, if ever, back up their claims with serious empirical evidence.
Meanwhile, the empirical evidence of the danger from administrative power is mounting. Not being directly accountable to the people – or even to judges who act without bias – administrative power crushes the life and livelihood out of entire classes of Americans, depriving them of work and even of lifesaving medicines. It therefore is difficult to avoid the conclusion that, overall, the administrative assault on basic freedoms is unnecessary and even dangerous.
What Is To Be Done?
Lenin asked his fellow Russians, “What is to be done?” Fortunately for Americans, the answer is not revolution but a traditional American defense of civil liberties.
To this end, Americans will have to work through all three branches of government. Of course, none of the branches has thus far revealed much capacity to limit administrative power. But this is all the more reason to consider what they can do before it is too late.
First, although Congress has repeatedly authorized and acquiesced in administrative power, it still perhaps can redeem itself. Most basically, Congress should reclaim its legislative power. And, of course, it need not do this all at once; instead, it can convert rules to statutes at a measured pace, agency by agency. By leaving so much lawmaking to the executive, our legislators have allowed not only power but also leadership and even fundraising to shift to the president. Ambitious legislators might therefore realize the advantages of reclaiming their constitutional role.
Congress also should bar judicial deference to agencies on questions of law or fact, as this violates due process and other constitutional limitations. Congress additionally should abolish administrative law judges and replace them with real judges (a reform it can partly fund by shifting money from the unconstitutional adjudicators to the courts). More generally, Congress should remove immunity for administrators – beginning with those who have desk jobs in agencies with a track record of violating constitutional rights.
The executive offers a second mechanism against administrative power. Presidents come and go, and a president worried about administrative power should not be content merely to put bad administrative policies on hold until the next election; more seriously, he should end administrative paths of governance. For example, he could require agencies, one by one, to send their rules to Congress for it to adopt. He also could require federal lawyers to refrain from seeking judicial deference, lest they participate in the courts’ due process violations. For any president, such steps would be a remarkable constitutional legacy.
A third and more predictable approach will be through the courts. The judges have repeatedly acquiesced in administrative power. Between 1906 and 1912 and again in 1937, the judges who stood up against it were threatened, and each time they gave way. Subsequently, even without threats, the judges have bent over backward to accommodate such power.
They thereby have corrupted their own proceedings – for example, by refusing jury rights even in court, by abandoning their office of independent judgment, and by engaging in systematic bias in violation of the due process of law. Overall, administrative power is one of the most shameful episodes in the history of the federal judiciary.
Nonetheless, Americans can persuade the judges to do their duty. The judges have high ideals of their office of independent judgment. And they are dedicated to their role in upholding the law, especially the Constitution. Accordingly, once they understand how administrative power corrupts the processes of the courts and violates constitutional liberties, at least some of them will repudiate it.
Ultimately, the defeat of administrative power will have to come from the people. Only their spirit of liberty can move Congress, inspire the president, and brace the judges to do their duty.
Americans therefore need to recognize that administrative power revives absolute power and profoundly threatens civil liberties. Once Americans understand this, they can begin to push back, and the fate of administrative power will then be only a matter of time.
