In this discussion about the Future of FreedomGovernor Mitch Daniels interviews Philip Hamburger, legal scholar and founder of the New Civil Liberties Alliance, about the administrative state. The two agree that federal agencies have committed at least two sets of sins. First, they have unlawfully and unnecessarily violated the rights of citizens, and second, they have done so on shady constitutional grounds.
Professor Hamburger attributes the rise of the administrative state to two intertwined factors. First, Congress has a strong political incentive to overdelegate—especially when it comes to politically risky details—and thereby unconstitutionally hand legislative power to bureaucrats. And second, there is a progressive ideology that promotes centralized, unified government and an expanded role for government. By the early twentieth century, these two factors would conspire to pave the way for the rise of the administrative state.
A glimmer of hope has recently emerged. The Supreme Court’s reversal of the Chevron doctrine has focused attention on the issue of judicial deference. What will be the real consequences of closing Chevron’s respective door? Only experience will tell. If economic history offers any clue, it is that human systems tend to adapt when institutional rules are rearranged. Bureaucrats are no exception. Cutting Chevron’s deference may not change the balance of power – it will depend on how agencies adapt to new ways of doing things. (See Lynne Kiesling’s take on the new incentives after Chevron.)
Nor is the classical liberal grass necessarily much greener in front of the courts, which also have a history of trampling economic rights. The most infamous is the period of 1938 US v. Carolene Products economic rights were relegated to the lowest priority for judicial review. Under 2005 Kelo vs. New London, courts refer to local majorities for the proper scope of eminent domain. And in 1992 Lucas v. South Carolia Coastal Councilregulation does not count as a takeover unless it destroys virtually the entire value of a property. The list goes on (see The dirty dozen by Bob Levy and Chip Mellor). Curbing judicial deference could take us out of the constitutional shadow, but there appears to be little guarantee that it will improve the protection of rights.
How did we get here? Hamburger attributes the rise of the administrative state to an American form of classism, in which progressive elites impose their good intentions and faith in government on everyone through the state monopoly on violence. This is certainly disturbing Rasmussen poll 2023 which show stark contrasts between elite and mass opinion on economic, social and political issues.
Yet we would be remiss to neglect the forces of populism. A recurring theme in James Buchanan’s work is that Leviathan is us, and that Big Government is ultimately the result of self-government.
“When we talk about controlling Leviathan, we should be talking about controlling self-government, not an instrument manipulated by the decisions of people other than ourselves. Widespread recognition of this simple truth could do wonders. If people would stop talking about and looking for bad people and instead start looking at the institutions staffed by ordinary people, broad opportunities for real social reform could open up.” (The limits of freedomp.188)
It is on Main Street and the kitchen table, not just K Street and the Administrative Court, where the buck stops.
Edward J. Lopez, professor of economics at Western Carolina University, executive director of the Public Choice Society, and author of numerous articles and books, including Madmen, intellectuals and academic scribblers.