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 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.