John Tierney interviews renowned law professor Philip Hamburger, in the Wall Street Journal, on the appalling growth of the Administrative State.
Whatâ€™s the greatest threat to liberty in America? Liberals rail at Donald Trumpâ€™s executive orders on immigration and his hostility toward the press, while conservatives vow to reverse Barack Obamaâ€™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, theyâ€™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 â€œguidanceâ€ 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 Instituteâ€™s Hayek Prize last year for his scholarly 2014 book, â€œIs Administrative Law Unlawful?â€ (Spoiler alert: Yes.)
â€œEssentially, much of the Bill of Rights has been gutted,â€ he says, sitting in his office at Columbia Law School. â€œThe government can choose to proceed against you in a trial in court with constitutional processes, or it can use an administrative proceeding where you donâ€™t have the right to be heard by a real judge or a jury and you donâ€™t have the full due process of law. Our fundamental procedural freedoms, which once were guarantees, have become mere options.â€ â€‹
In volume and complexity, the edicts from federal agencies exceed the laws passed by Congress by orders of magnitude. â€œThe administrative state has become the governmentâ€™s predominant mode of contact with citizens,â€ Mr. Hamburger says. â€œUltimately this is not about the politics of left or right. Unlawful government power should worry everybody.â€