Category Archive 'Administrative State'

12 Jun 2017

The Tyranny of the Administrative State

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John Tierney interviews renowned law professor Philip Hamburger, in the Wall Street Journal, on the appalling growth of the Administrative State.

What’s the greatest threat to liberty in America? Liberals rail at Donald Trump’s executive orders on immigration and his hostility toward the press, while conservatives vow to reverse Barack Obama’s regulatory assault on religion, education and business. Philip Hamburger says both sides are thinking too small.

Like the blind men in the fable who try to describe an elephant by feeling different parts of its body, they’re not perceiving the whole problem: the enormous rogue beast known as the administrative state.

Sometimes called the regulatory state or the deep state, it is a government within the government, run by the president and the dozens of federal agencies that assume powers once claimed only by kings. In place of royal decrees, they issue rules and send out “guidance” letters like the one from an Education Department official in 2011 that stripped college students of due process when accused of sexual misconduct.

Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution, says Mr. Hamburger, 60, a constitutional scholar and winner of the Manhattan Institute’s Hayek Prize last year for his scholarly 2014 book, “Is Administrative Law Unlawful?” (Spoiler alert: Yes.)

“Essentially, much of the Bill of Rights has been gutted,” he says, sitting in his office at Columbia Law School. “The government can choose to proceed against you in a trial in court with constitutional processes, or it can use an administrative proceeding where you don’t have the right to be heard by a real judge or a jury and you don’t have the full due process of law. Our fundamental procedural freedoms, which once were guarantees, have become mere options.” ​

In volume and complexity, the edicts from federal agencies exceed the laws passed by Congress by orders of magnitude. “The administrative state has become the government’s predominant mode of contact with citizens,” Mr. Hamburger says. “Ultimately this is not about the politics of left or right. Unlawful government power should worry everybody.”

RTWT

26 Jul 2013

Social Conservatism Versus the Liberal Administrative State

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The mad scientist Rotwang works on his Maschinenmensch in Fritz Lang’s “Metropolis” (1927).

James Kalb contends that modern administrative liberalism successfully eliminates Religion, Nature, and Tradition from serious consideration in political questions of policy, but he remains optimistic for Conservatism’s ultimate victory.

[Today’s] situation is the result of the occupational outlook of those who run things in the West today. People who try to run a mass industrial society with a mixed and fluid population find it easiest to understand their task in accordance with a general scheme that emphasizes equality, technological rationality, and maximum preference satisfaction. Those committed to such a scheme have trouble making sense of traditional understandings based on a very different view of how the world works. Hence the difficulty social conservatives have making their case: their outlook is too much at odds with that of the influential public they hope to reach.

Still, political thought is more than an expression of institutional functioning and occupational perspective. Its highest use is to change and even transform how the social world works for the sake of a better way of life. With that in mind, it seems worthwhile to develop an account of public life and its relation to social conservatism that might aid those in responsible positions to understand the latter and how it functions.

For all the talk of diversity, today’s politics are extraordinarily uniform. The West lives under a single political regime, managerial liberalism, that combines an emphasis on individual choice and democratic values with domination of social life by experts, functionaries, and commercial interests. The liberal and managerial aspects of the system seem at odds with each other, but both are basic, and together they have led to the suppression of many things that have always been fundamental to human society—religion, cultural particularity, even the distinction between the sexes.

Unusual though the resulting form of society may be, people take it for granted, so much so that anything else seems impossible. No one can imagine a future, apart from chaos and tyranny, that is anything but more of the same; and those who want to roll back recent developments, to the ’50s, for example, are considered out of touch or psychologically disordered. If you are skeptical about democracy, diversity, and choice, or if you do not trust the experts, there is something wrong with you. And if you think there is an authority that could call the regime into question, and even at times override it, you are a fanatical extremist.

What is going on? Why the uniform insistence on such an odd political orthodoxy in an age that supposedly believes in freedom, diversity, and reason?

Part of the answer is that political choices have narrowed as one alternative after another has been discredited and an exclusively technological attitude toward social life has taken hold. The First World War meant an end to traditional and multinational monarchies; the Second, an end to any serious European Right or strong conception of national sovereignty. Those and other upheavals made the administrative machinery of the state more all-encompassing and destroyed local traditions and respect for goals other than effectiveness and uniformity.

The world wars were followed by prosperity, TV, cheap jet travel, globalized markets, electronic communications, the contemporary welfare state, and a continued tendency toward the industrial organization of life. People today eat at McDonalds, children grow up in day care, and local establishments have been replaced by chain stores and the Internet. The two wars were also followed by the Cold War. As a modern war, the Cold War further centralized social life and increased government power; as a struggle of ideas, it made thought more ideological. Western governments became accustomed to social management based on grand slogans such as human rights. With the collapse of Soviet communism, the last nonliberal form of modern political life, such tendencies could unfold without external check.

Our current public order claims to separate politics from religion, but that understates its ambition. It aspires to free public life—and eventually, since man is social, human life in general—not only from religion but also from nature and history. The intended result is an increase in freedom as man becomes his own creator. The effect, though, is that human life becomes what those in power say it is. Western political authorities now claim the right to remake the most basic arrangements. If you want to know the nature of man and the significance of life and death, you look to the political order and its authorized interpreters. That is the meaning of the redefinition of marriage to include same-sex unions and the transformation of abortion into a human right. Man has, in effect, become God, and politics is the authoritative expression of his mind, spirit, and will. …

What allows the managerial liberal regime to function are habits of loyalty and sacrifice, and understandings of natural goods and purposes, which it continually undermines and cannot justify or explain.

Hat tip to John Zmirak.

28 May 2013

US Government’s Fourth (and Largest) Branch

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This article by Jonathan Turley puts the impact of the rise of the Progressive Administrative State into perspective.

For much of our nation’s history, the federal government was quite small. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress.

Read the whole thing.


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