The Administrative State
The framers of the Constitution devised a system of government that divided power among three branches: legislative, executive, and judicial. The intent was for the branches to check each other’s power to keep the government from superseding the sovereignty of the people. It is the application of Newton’s third law of dynamics to political science. Progressives were always dissatisfied with the arrangement because they wanted a more powerful government that could override the people’s sovereignty.
Frank Goodnow and Woodrow Wilson envisioned a different separation of powers to unleash the government progressives pined for.[1] They argued that government was not a machine, but a living thing.[2] (This is the foundation of the theory of a living Constitution.) The division they proposed was a branch of politics and a branch of administration.[3] Fundamentally, the political branch would placate the people while the administration ruled them.
Whereas the framers feared the legislative branch would become too powerful, Goodnow and Wilson considered it an impediment. Scornful of constitutional restraint of power, they envisioned growing the power of the executive branch beyond the vision of Alexander Hamilton. The fundamental argument they used was that times had gotten too complicated for average people to govern themselves. Of course, their solution was to expand the executive branch with experts who would rule the country via regulations rather than laws. As Dr Philip Hamburger argued, administrative law is unlawful (e.g., unconstitutional).[4] They were not going to let that stop them.
As with most major political shifts, Wilson could not make his theory a reality during his administration. As Theo Wold points out, it took Jim Landis in the FDR administration to inflict it upon us.[5] In addition to supporting the New Deal, Landis was instrumental in writing laws and setting up the Securities and Exchange Commission.[6] The winning argument Landis made was that the separation of powers not only implied division, but coordination. So, administrative agencies had to be created to solve the purported coordination problem.
The worst part of the Wilson-Goodnow-Landis system is that it completely changed the relationship between the American people and their government. Whereas politicians are answerable to the people via elections, bureaucrats are not. The people are no longer sovereign, and they won’t be until the rule of experts is over. Elected officials are intimidated by unelected bureaucrats, thereby silencing the voice of the people.[7]
Let’s revisit the foundational arguments laid out by Goodnow, Wilson, and Landis.
First, we should ask if the government is a living thing. If so, what are the signs of life? A pulse? Does it breathe? No, it is an institution created and managed by living beings. Moreover, it is a complex adaptive system composed of beings who make rules. Like all complex adaptive systems, it requires maintenance, grows nonlinearly and is prone to collapse. Controlling the damage of such a system can only be done with iron-clad rules that restrict its size and power—exactly as the framers deduced.
Second, how have times gotten too complex for people to govern themselves? This should be an immediate red flag that the very people who propose this tenet simply don’t believe in self-governance. It is true that the modern world has an amazing array of inventions, but these tools tend to simplify our lives instead of complicating them. Hundreds of years ago, men and women spent their entire days ensuring their families ate. In the US today, the availability of fast food means we have a full day to do other things. What other things? The key is that freedom and independence mean we get to decide, not have someone else decide for us. If the world is full of choices, that is merely to our benefit.
Third, does a bevy of agencies really assist with coordination? Instead, agencies are constantly competing for power and money and thumbing their noses at elected officials. Wanting to improve coordination is a worthy goal and not in itself unconstitutional. The problem here is that an unconstitutional structure has been put in place that doesn’t even remotely achieve its stated goal.
Fourth, are government officials really experts? Merriam Webster defines an expert as
one with the special skill or knowledge representing mastery of a particular subject.
Skill requires knowing how to do something. On the other hand, knowledge is focused on what to do. So, what is the basis for their expertise? Given that government attracts those who want to tell others what they can and can’t do, it would seem they are experts on telling the public how to live their lives. Given that, we should inspect how well these people live their own lives… We have been conditioned to look past this issue, but it is the most important question. If they don’t know how to live their lives better than we do, do we want them making any rules for us?
In 1883, the Pendleton Civil Service Reform Act was intended to replace the existing “Spoils system.”[8] On the face of it, the reforms make sense. It instituted competency exams and protected employees from political dismissal.[9] Unfortunately, it has become a building block for a series of executive orders and legislation that has led to what Ronald Reagan described as “the closest thing to eternal life we’ll ever see on this earth.”[10] Among the executive orders is 10988, which legalized public-sector unions. It has been superseded by follow-ons that would also need to be repealed. The judicial branch is not blameless in escalating the bureaucratic state. “Chevron deference” gives agencies almost a blank check to grab as much power as possible.[11] The doctrine allows them to make rulings wherever legal ambiguity exists.[12]
The sad truth is that Landis’ experts are paper tigers. The only way to measure their expertise is with subsequent results that are nearly impossible to pin on them, but their failures are legion. The railroad accidents in 2023 are direct result of agency experts who aren’t experts at all. The CDC’s behavior during the covid-19 pandemic exposed how bad the expertise within that agency is. Bureaucratic abuses of data classification are rampant. More classification is used to protect personal interests than national interests. This can only persist because of career bureaucrats.
The problem is not the intelligence of the individuals in government agencies. It’s the hubris that goes with the label of expert. It is a human failing to protect one’s legacy at all costs, and everything an agency does has a legacy attached for some of their members. Rather than the positive view of agencies adapting to changing circumstances, human nature dictates that they will react defensively. It ends up being “us” against “them,” where the “them” is the American public. Such agency reactions are always detrimental to the populace. And this is independent of outright fraud and profiteering.
Fifth, “experts” disagree. There are still scientists who believe that Einstein was wrong. Doctors are still torn on the effectiveness and long-term effects of the Covid-19 vaccine. In truth, science is never settled. True scientists always have a skepticism about what they accept as truth. The instant they do otherwise, they become politicians instead of scientists.
True experts in any field should disagree. It is the only way that honesty prevails.
Sixth, because experts disagree, someone needs to make a decision. Decision-making is not a strong suit for experts, and their personal bias will always come into play.
Decision-making is where the line of sovereignty gets crossed. Allowing unelected bureaucrats to de-facto legislate is constitutionally unsound and destroys the people’s self-governance. Our elected officials should be making the decisions. We are missing the proper division of labor.
In closing
The framers of the Constitution frequently talked about competence and incompetence, but they never spoke of experts. Competence is demonstrated by producing a positive result. Ivory tower theory is fine as a starting point, but just like the first shot in a battle, few theories hold up to practice.
Legislators should listen to competent practitioners in hearings. But they should write laws with few specifics. Rather than deferring to national bureaucrats, the details that refine the laws should reflect federalism and be filled in by the states, so the determination is closer to the people. There are few things where national standards dictate otherwise: standard time, railroad gauges, and aviation are some obvious examples that trace directly to the Commerce Clause. These are rare exceptions where agencies do make sense—because they have basis in operational necessity on a national level.
So, what are we to do? Eliminate all agencies? No, certain agencies existed long before Jim Landis, but we do need to eliminate many. What is paramount is to recognize that these people are not irreplaceable experts. They may not even be competent. Other than the military, no one should be able to serve a lifetime in a government agency. The “churn” would be to the benefit of the American public. Why pension bureaucrats who subvert our sovereignty? The agencies themselves should be subject to termination at any time.
The power of the bureaucratic state needs to be checked, just like the original three branches of government. The question is how to accomplish this. If the three branches of government check each other, what entity can check the agencies? Clearly, the constitutional branches will not do it because the agencies provide them with political cover. The answer may lie with what Jefferson and Madison referred to as the “ultimate arbiter.” When they used this term, they meant the voting public. But the notion of the people terminating any agency flies in the face of the Wilson-Goodnow-Landis arguments. So be it. It is past time that these arguments be declared false and abandoned.
[1] “Politics and Administration.” Teaching American History, July 7, 2022. https://teachingamericanhistory.org/document/politics-and-administration/.
[2] “Constitutional Government in the United States.” Teaching American History, July 7, 2022. https://teachingamericanhistory.org/document/constitutional-government-in-the-united-states/.
[3] Pestritto, Ronald J. Woodrow Wilson and the roots of modern liberalism. Lanham, MD: Rowman & Littlefield Publishers, 2005.
[4] Hamburger, Philip. Is administrative law unlawful? Chicago: University of Chicago Press, 2015.
[5] Wold, Theo. “A Century of Impotency: Conservative Failure and the Administrative State ’ American Greatness.” American Greatness, June 26, 2023. https://amgreatness.com/2023/06/24/a-century-of-impotency-conservative-failure-and-the-administrative-state/.
[6] 27, October. “Too Big to Fail or Too Hard to Remember: James M. Landis and Regulatory Design.” Edmond & Lily Safra Center for Ethics, October 27, 2014. https://ethics.harvard.edu/blog/too-big-fail-or-too-hard-remember-james-m-landis-and-regulatory-design.
[7] Buck, Ken. Drain the swamp: How Washington corruption is worse than you think. Regnery Publishing, 2017.
[8] 1. “Pendleton Act (1883),” National Archives and Records Administration, accessed August 28, 2023, https://www.archives.gov/milestone-documents/pendleton-act.
[9] 1. Diana Moreira and Santiago Perez, Evidence from the pendleton act – cato institute, accessed August 29, 2023, https://www.cato.org/sites/cato.org/files/2022-01/RB284.pdf.
[10] 1. Ronald Reagan, “A Time for Choosing Speech, October 27, 1964,” Ronald Reagan, accessed August 28, 2023, https://www.reaganlibrary.gov/reagans/ronald-reagan/time-choosing-speech-october-27-1964.
[11] 1. Supreme Court, “Chevron, U.S.A., Inc., Petitioner, V. Natural Resources Defense Council, Inc., et al.. American Iron and Steel Institute, et al., Petitioners, V. Natural Resources Defense Council, Inc., et al.. William D. Ruckelshaus, Administrator, Environmental Protection Agency, Petitioner, V. Natural Resources Defense Council, Inc., et Al..,” Legal Information Institute, accessed August 28, 2023, https://www.law.cornell.edu/supremecourt/text/467/837.
[12] 1. “Chevron Deference,” Legal Information Institute, accessed August 28, 2023, https://www.law.cornell.edu/wex/chevron_deference.
