“The administrative state is the leading threat to civil liberties of our era,” says Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the recent books, Is Administrative Law Unlawful? (2015) and The Administrative Threat (2017). “We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts, but we have within that an administrative state, a state that acts really by mere command and not through law.” Hamburger argues that by reducing the role of elected officials to set policy, the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power.
Before he left the Trump administration, former White House Chief Strategist Steve Bannon famously vowed to “deconstruct” the administrative state—the collection of bureaucrats, agencies, and unelected rule-making bodies who decrees and diktats govern more and more of our lives.
And many of the president’s picks at places such as the FCC, the FDA, the EPA, and the Department of Education seem to be doing just that: cutting regulations and policies that come not directly from Congress but from administrators who decide, say, that the FCC has the ability to regulate the internet as a public utility, and that so-called net neutrality is a good idea. Trump’s appointee to the Supreme Court, Neil Gorsuch, is widely understood to be a critic of the administrative and some of best-known ruling challenged the validity of rules laid out by federal bureaucracies.
Reason’s Nick Gillespie sat down with Hamburger to discuss why the administrative state is unconstitutional, and what, if anything, can be done reduce its power.
Edited by Ian Keyser. Introduction produced by Todd Krainin. Cameras by Jim Epstein and Andrew Heaton.
Music “Integration Blues” by Javolenus
Available at ccmixter.org http://ccmixter.org/files/Javolenus/56235
Under CC BY NC license https://creativecommons.org/licenses/by-nc/3.0/
This is a rush transcript. Check all quotes against the audio for accuracy.
Nick Gillespie: Let’s start by defining administrative law in the administrative state. What does it do and where does it come from?
Philip Hamburger: Administrative power can be administered many different ways. Some people use the phrase to describe all government power in executive, and that’s rather too broad. It’s indiscriminate. I use the phrase to describe extra-legal rulemaking and adjudication. Exercise of power to bind Americans, to control Americans, not through the pathways set out by the Constitution and acts of Congress and acts of the court, but through other edicts, typically from agencies.
Gillespie: In your recent book, Is Administrative Law Unlawful, you liken the practice of administrative law to off-road driving, and you write, ‘The problem examined here is thus not where the government is heading, but how it drives. To leave the roads laid out by the Constitution can be exhilarating, at least for those in the driver’s seat. All the same, it is unlawful and dangerous.’ So, administrative power, it’s not that Congress doesn’t make a law and then it gets implemented. That’s not administrative power. Congress passes a law that says, ‘we want clean air.’ And then the EPA says, ‘okay, in order to implement that law, we’re coming up with all of these different aspects.’
Hamburger: Right. The danger is what the agencies do. Congress certainly has power to enact all sorts of laws regulating us, and so this is not an argument against regulation. We can debate the merits of particular regulations. But rather, it’s an argument against having the executive or independent agencies, or more or less, a part of executive agencies, make rules that bind us in the same manner as laws enacted by Congress.
Gillespie: Right. But, they’re not subject to the same kind of public discussion or vote. So, is the administrative state bad because it ends the separation of powers? Because the executive branch gets to make more and more decisions? Or, maybe and/or, it’s bad because the rules can’t really be … you know, they’re implemented in a non-democratic or non-representative way.