Doctor Hamburger Diagnoses a Malignant Administrative State

Any regular reader at American Thinker is aware of the rising concern about government overreach and amplified, expanded executive branch abuses and multi-agency multifarious misconduct.  The ominous nature of the administrative state (think IRS, EPA, DOJ, DEA, Interior, FCC, SEC) transforms our government originally designed as limited and by the consent of the governed.  Emblematic of the administrative state problem is the slow-rolling special counsel coup being orchestrated by intelligence and law enforcement agencies intent on overturning a presidential election, energized and perpetrated by human creatures in the embedded federal bureaucracy that occupies a wide swath of swampland on the Potomac River.

Angelo Codevilla rang the alarm about the excesses of statism in a 2009 essay about the growth of the Bismarckian (think Prussian) administrative state.  He wrote an insightful and compelling essay, "Scientific Pretense and Democracy," that warned of an army of state-appointed and supported experts recruited to entrench the statist government and expand the administrative state structure and power.

Codevilla followed the "Pretense" essay in 2010 with the famous and well received 2010 essay "The Ruling Class and the Perils of Revolution," warning of the growth of an unelected and totalitarian ruling class, whose influence and power are derived from the self-bestowed "expertise" and status they thought justified their position and ambitious exercise of power, suppressing dissent and intimidating the citizenry for the benefit of the ruling class.  

Phillip Hamburger, Friedman Professor of constitutional law at Columbia, reminded me of the problem of administrative law growth in America with his 2017 bite-sized 70-page book, The Administrative Threat, that summarizes the points of his magisterial and erudite 650-page 2014 book, Is the Administrative State Legal?  I liked the short book – but I was more taken by the long book because Hamburger moves into the weeds to explain in depth what motivated the American founders to write a Constitution that intentionally hobbled the power of the executive.  He explains the history of tyranny in England that was well known to the framers of the Constitution, abuses such as government by crown edict; crown-initiated Star Chamber prosecutions that were politically motivated; and the excessive and oppressive nature of the reigns of James I and Charles I, who were kings from 1603 to 1649, when Charles was beheaded after a civil war.  The Americans, the founders, were acutely aware of royal tyranny and bound to avoid it.

So Hamburger made a big splash in 2014 and since, with two books that stirred up things because of his condemnation of the expansive administrative state.  It was present at the founding in a limited degree, but it underwent dramatic growth in 20th-century America, pushed by high-profile activist presidents like Teddy Roosevelt; Woodrow Wilson; and, more dramatically, Franklin Roosevelt.

The Administrative Threat (2017) is short but packed with legal good sense, full of powerful and well framed arguments.  The book is penetrating and energetic.  Hamburger's longer book, Is Administrative Law Unlawful? (2014), provides a longer and more thoroughgoing review of the main tenets of Hamburger's thesis: that the legislative and judicial powers and authority exercised by agencies and officials of the executive branch are clearly an unconstitutional usurpation of the powers of the other branches and clearly illegal and unconstitutional, and bring back the abuses of the Star Chamber and government by royal edict.

Hamburger writes a damning indictment of the administrative state, and he makes his case carefully and with attention to detail.  He shows convincingly why he considers the powers of current agencies of the executive branch to be in contradiction of the Constitution that was intended to create restraints on all of the three branches.  Hamburger contends that the laws are to be written and interpreted by the Legislative and Judicial Branches and that only those two branches can articulate the obligations created for citizens.  Executive agencies cannot and must not create laws and regulations, as is the case presently, and do not have the authority to determine if citizens have violated the law.  Executive Branch agencies and authority are restricted to enforcement of the law, but now agencies make law and regulations and determine compliance and assess punishment for non-compliance after making judgments that citizens have committed violations in administrative proceedings.

Hamburger in his public statements and comments on his writings about the administrative state makes these points that are well developed and reasoned in both books:

  • Administrative law and power are extra-legal, since they do not originate as acts of the legislature and the judiciary. 
  • The use of executive power to legislate and judge is the nature of tyranny that the founders and the Constitution they wrote intended to prevent – the power of monarchs: prerogative power, unfettered power, absolute power characteristic of dictators or kings, who may also be unrestrained despots.
  • Do not be fooled by the apparently benign and beneficent nature of administrative power, born of expertise and authority, exercised for the general benefit.  If it is illegal, extra-legal, and not approved by the Constitution of the United States for a good reason: to prevent tyranny.
  • The founders and the citizens of the time of the founding were profoundly committed to prevent tyranny of government.  They specifically prohibited extralegal powers and endowed the legislative and judicial arms of government with separate powers as well as limiting the power of the executive.
  • Just because the Congress abdicated its legislative and rule-making powers, that doesn't make it right or legal.  It only means that the Congress has neglected its constitutional duties.
  • Just like the Congress, the Judiciary has abdicated a duty its members have to assure that the Constitution is enforced – judicial "deference" to executive agency rule and regulation-making that is extra-legal is judicial abdication of duty to enforce the law.

Professor Hamburger points out the extra-legal activities of government executive agencies violating voting rights of the citizens, putting into power unelected bureaucrats and "experts" warned of by Codevilla.  And the circle is closed.  Hamburger warns of the "expert" ruling class, based on mistrust of citizens and arrogance of the elites.

Hamburger speaks in an interview for Columbia Law School News about the importance of Supreme Court repair of the agency power imbalance: "The conundrum is all the more serious because administrative power is a profound threat to civil liberties and an evisceration of equal voting rights.  If the [Supreme] Court rigidly adheres to precedents that have gutted people's constitutional rights, it will end up undermining its own legitimacy."

The Supreme Court has a long way to go before it will have a salutary impact on the growth of this cancer of a federal agency-driven administrative state that was created to a great degree by the Court's terrible opinion in Chevron, allowing agencies to interpret the enabling legislation for their activities.  However, we have a small start by Justice Clarence Thomas, applauded by Myron Magnet at City Journal, and by the newest justice, Neil Gorsuch, who has been clearly in favor of restraining the administrative state.  Thomas and Gorsuch are a first step, as earnest and energetic critics of unbounded federal executive agency power and activities.  Scalia was not sensible about the Administrative State expansion, and he even wrote a terrible opinion on agency power and deference to that power in Whitman v. American Trucking Association (2001), applauded by the usual suspects on the left (New York Times) as giving the EPA "deference" to expand and interpret the Clean Air Act.  The left wing of the Supreme Court is all in for the administrative state, and the right wing is inclined to oppose Administrative State expansion.  The problem of agency overreach into the constitutional authority of the Legislative and Judicial Branches is a known problem, deserving some legal ablation therapy.

John Dale Dunn, M.D., J.D. is an emergency physician; inactive attorney in Brownwood, Texas; and policy adviser to the American Council on Science and Health of NYC and to the Heartland Institute of Illinois.

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