Decoding the Tyranny of the Administrative State

Purchasing Submission:  Conditions, Power, and Freedom, by Philip Hamburger, 336 pp Hardcover $35 Kindle $33.25,   ISBN-13 ‏‎ 978-0674258235, Harvard University Press, 2021.

Professor of Law Philip Hamburger of Columbia University has been campaigning for years to measure, define and condemn the growth of a powerful administrative state in America.     

The late, great Angelo Codevilla rang the alarm about the excesses of centralized oligarchic statism and an army of unelected bureaucrats eating away at liberty for citizens under the constitution in his essay, "Scientific Pretense and Democracy," followed on by another wellreceived  2010 essay "The Ruling Class and the Perils of Revolution," about the growth of an unelected totalitarian ruling class, whose influence and power are derived from "expertise" that allowed them to exert power over and intimidate the citizenry as the self-anointed oligarchy.  

Professor Hamburger, Friedman Professor of Constitutional Law at Columbia, caught my attention with a short monographic book, The Administrative Threat, that summarized the points of his erudite 650-page 2014 book, Is the Administrative State Unlawful?  The short book is a great summary but the long book is magisterial and explains why the political geniuses of the American Founding wrote a Constitution that intentionally hobbled the power of the executive branch and created competing branches to distribute power and prevent tyrannical grasping of power by any branch, along with a federal plan to distribute power to the states.

The Founders were well aware of the history of tyranny in England -- crown edicts, Star Chamber prosecutions and other abuses that flourished in the first half of the 17th century -- ending with a civil war and regicide of Charles I.  These events were fresh in their 18th century minds and they were serious students of political theory.

Hamburger wrote his two books from the maw of the liberal political establishment, Columbia University in Upper West Side Manhattan, but he obviously has his legal head on straight.  He writes about administrative state growth and abuses that had emanated from that growth of a regulatory state.

His recently published book Purchasing Submission is his effort to show another way that the US Constitution is diminished and liberty suffers: the purchase of submission by means of government distribution of benefits and rewards to private entities, citizens, businesses, lesser governmental entities from the state down, so that the government can expand its power under another method of tyrants—incentives and rewards.  In the lingua of politicians and bureaucrats, carrots as an alternative to sticks.

The Administrative Threat (2017) is short but packed with legal good sense, full of powerful and well framed arguments.  Hamburger's longer book, Is Administrative Law Unlawful? (2014), provides a longer and more thorough going 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 a usurpation of the powers of the other branches -- and clearly illegal and unconstitutional. 

Hamburger writes a damning indictment of the administrative state, and he makes his case carefully and with attention to detail.   Executive agencies cannot and must not create laws and regulations, as they do 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. That’s the stick.  Government can achieve control and power and diminish liberty by way of rewards and benefits—nothing but a form of bribes to get citizens to give up their liberties.  That’s the carrot and it is the favorite tool for legislators but is also for executive branch agencies. There is no better way to get what you want in politics than to hand out favors.  Since the beginning of time, rewards have been offered to the populace by those who sought power and control, and force or threat of force was used as an unavoidable or imperative alternative (think Machiavelli).

  • Professor Hamburger sets up the themes of his book on how governments eat up the liberties of citizens:
  • Government agency  “favors” and “inducements” and “threats” that substitute for properly imposed legislative laws passed by the congress
  • Government agency actions and activities enforce and impose unconstitutional diktats created by executive agencies and not the Congress;
  • Continuing activities by agency apparatchiks that create a new and aggressive legislative regime imposed by agencies and not by a political process that originates in the Congress;
  • Agency adjudications of disputes and enforcements invade the province of the judiciary and are intended to avoid judicial review and be another usurpation of legislative and judicial prerogatives.

The professor’s 320-page book Purchasing Submission spares no effort to explain how the government can abridge and nullify civil rights of citizens and tear down the constitutional protections by the Founders in matters of law making and law enforcement.

The book jumps into the fray as only Professor Hamburger can:

  • The highjacking of civil rights requires an analysis of the arguments from the Constitution, legal precedent and common sense/utility;
  • Legal precedents on matters of conditions, nudging, privileging, rewards are all over the place, because courts have not been attentive to the problem;
  • The focus on protecting civil rights is lost in the confusion of efforts to influence, create compliance, contentment and ultimately submission;
  • Courts have ignored the impact of these new methods of governance that include what amount to bribes for submission;
  • States have been victims of the influence peddling with grants in aid programs that have incentives and compliance orders attached;
  • Conditions, considerations, privileges and rewards have been used in federal laws to intimidate and cajole states, private entities, and citizens to submit to what in many cases are restrictions of civil rights;
  • In matters of public speech federal agencies have restricted civil rights that impact broadcast and print and educational entities;
  • Federal agencies have recruited with incentives private entities and educational institutions to act as agents enforcing agency policy;
  • States and private entities have been commandeered to be enforcers of federal policy.

The point is that Professor Hamburger has written an incisive and thorough book on the federal government’s campaign to impose an Orwellian dystopian and totalitarian regime on the populace.

The book is easy to read and to the point—and at the end Hamburger proposes ways to identify and neutralize the problem of laws that violate the constitution and how citizens can combat the tyranny,

Warriors in this civil rights war have to know the enemy.

John Dale Dunn, MD JD is a physician and non-practicing lawyer in Brownwood, Texas

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