The Magazine

L’État, C’est Moi

With the stroke of a pen, the executive branch reigns supreme

Jul 21, 2014, Vol. 19, No. 42 • By ILAN WURMAN
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The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument. 

Louis XIV

Louis XIV

“The trouble in early times was almost altogether about the constitution of government; and consequently that was what engrossed men’s thoughts,” wrote Woodrow Wilson in his Study of Administration (1887). “The functions of government were simple, because life itself was simple. .  .  . No one who possessed power was long at a loss how to use it.” That all changed—apparently in Wilson’s generation—when “present complexities of trade and perplexities of commercial speculation” posed new challenges for government. 

“In brief,” Wilson wrote, “if difficulties of governmental action are to be seen gathering in other centuries, they are to be seen culminating in our own.” So we need experts: “[W]e have reached a time when administrative study and creation are imperatively necessary to the well-being of our governments saddled with the habits of a long period of constitution-making.” 

Necessary; there is no alternative. As the Supreme Court has declared, “[I]n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” 

That is a convenient narrative for the defenders of the administrative state. But it is fanciful. It is not historically accurate. And the justifications—especially the claim of necessity—are not new. Neither are the powers of the administrative state. Indeed, Philip Hamburger, professor of law at Columbia, argues here that it was precisely these justifications and powers that English and American constitutional law developed to protect us against. Not only is the modern administrative state unconstitutional, it is the very thing our Constitution sought to prevent.  

There used to be terms to describe the conduct and powers of the modern administrative state. When the Obama administration issues waivers to favored companies excusing them from some health care regulations, our English ancestors would have called it the dispensing power. When the administration decides that it will no longer enforce certain immigration laws, our ancestors would have called that the suspending power. When the president issues executive orders that make law—or more commonly, when his administration promulgates rules that bind individuals—they would have called that prerogative lawmaking. 

When administrative agencies, which are not courts of law, issue binding orders to appear and testify; when they command homes, businesses, and records to be kept open for inspection; when they require businesses to self-report regulatory violations; when they bind subjects without juries or independent judges—there were terms for such actions, too. They were general warrants and writs of assistance. They were self-incrimination and ex officio proceedings. They were Star Chamber and the High Commission. 

They were tyranny. 

“The history of administrative law,” writes Hamburger, “reaches back many centuries.”

It is thus not a coincidence that administrative law looks remarkably similar to the sort of governance that thrived long ago in medieval and early modern England under the name of “prerogative.” .  .  . Administrative law thus turns out to be not a uniquely modern response to modern circumstances, but the most recent expression of an old and worrisome development.

Hamburger meticulously (and sometimes laboriously) demonstrates how the modern administrative state revives all the attributes of the royal prerogative and absolute power. Even in the details, modern administrative law is shockingly reminiscent of 16th- and 17th-century royal conduct. 

Today, for example, administrative agencies claim statutory authority to create rules—that is, to make law—where constitutionally enacted statutes are ambiguous. Agencies “interpret” their own statutes, and courts give those interpretations deference. King James I argued that he had the same powers as his common law judges to interpret law and that they must defer to his interpretation. 

What has changed?

The similarity is important in its more general contours. Hamburger explains that administrative power is a power exercised outside the law: It is created outside the established constitutional procedures. It is also a power exercised above the law: It excuses both the executive and subjects from following law, as with the dispensing power (i.e., waivers). And finally, it is a consolidated power: The otherwise-separate legislative, judicial, and executive powers are combined—which, Hamburger writes, is the traditional understanding of absolute power. 

It is also unconstitutional. There is no constitutional provision granting the president power to dispense with particular health care regulations for certain companies. The Constitution establishes only three powers: the legislative power to make the law, the judicial power to adjudicate cases in accord with the law, and the executive power to execute the law. “None of these powers includes any authority to excuse persons from law,” Hamburger writes. “The power to exclude from law was the old dispensing power, and it simply does not exist in the Constitution.” 

Administrative adjudications that bind the parties are also unconstitutional. When Parliament abolished the Star Chamber during the English Civil War, it declared that the property of the subject “ought to be tried and determined in the ordinary courts of justice and by the ordinary course of the law.” Our Constitution “even more clearly located judicial power in the courts,” writes Hamburger, and the Framers thereby “emphatically reiterated the constitutional bar to any extralegal adjudication.” And yet today, the executive branch—“like the Crown in the early 17th century”—enforces its own rules in its own tribunals. 

The arguments for administrative power always rely on necessity. But no one has ever proved that, somehow, society is too complex for judicial warrants and lawmaking by constitutional means. Do we really need experts to create regulations? Does Congress not have the expertise to tackle “ever changing and more technical problems” in an “increasingly complex” society? Maybe so. 

But there is an easy solution. If experts are needed, there is no dearth of them. Why not have these experts in administrative agencies propose their regulations as legislation for Congress to enact? That would be no different from the current process of administrative rulemaking—except that it would be democratic. It would require political will and popular support. And that is precisely why many liberals would oppose such a modest proposal.

But there is something even more fundamental about “necessity” and social “complexity.” The administrative state is a poor way to handle the complexity that has justified its exist-ence all along. The administrative state assumes that it has reached answers to questions that ultimately might not have scientific conclusions. Federal agencies, thus, “have difficulty keeping up to date with science,” because their particularized controls for particularized problems are inflexible and cannot adapt to technological change. 

Administrative law depends on epistemological arrogance, assuming that there is one right answer to a given problem. But our entire society (like all free-market societies) presupposes that there exists a diversity of opinions, objectives, and needs. It is precisely in an “increasingly complex” society that there is no one-size-fits-all answer. 

If the tendency of modernized society is toward freedom or at least social fragmentation, then continual direction by the federal government may actually be inconsistent with modernity.

Maybe humility—and constitutional government—are better after all.

Ilan Wurman is clerk to Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit.