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The administrative state, also known as the Deep State and The Swamp, has been with us for a long time. Recently, however, I heard Professor John Marini talk about his work in “unmasking” the administrative state and I realized the future of the Republic is precarious, if not endangered. I learned about his work when he appeared on Mark Levin’s Sunday night Fox News show, Life, Liberty & Levin.
Professor Marini is one of the few writers who talk about the attack on our constitutional system by the workings of the administrative state:
It might seem odd to look to an avuncular professor of political philosophy to provide the coherence that populist politics needs but cannot supply for itself, but at least in America this makes sense, since the teachings of political philosophy, starting with natural rights, go back further than the Founding itself. What’s far more strange than this is the rarity of such efforts — Marini is one of a small number of writers on politics who have made it their work to question the legitimacy of rule by experts and to expose it as an attack on the constitutional system of the separation of powers, balances and checks, and accountability to the electorate.
The most obvious attack on our government occurred with the Presidency of Woodrow Wilson. He believed that the Constitution was an archaic document that if used at all, needed to be modified periodically, in order to serve the times. Rather than rely on the separation of powers to enact legislation, Wilson supported the governance of experts to decide the needs of the country. Rather than relying on Congress to legislate, that body would only need to provide oversight of the experts who would create the governing rules. The largest source of these experts was academia, where new areas of “science” were being identified on a regular basis.
The Supreme Court has also been complicit in assisting the administrative state:
Marini expresses particular disappointment that the U.S. Supreme Court, rather than protecting separation of powers as defined by the Constitution, has instead facilitated the establishment of the administrative state. Its opinion in Humphrey’s Executor v. United States (1935) was particularly egregious in that it affirmed the power of Congress to create quasi-legislative, quasi-judicial agencies within the executive branch largely free from presidential control. Put another way, it authorized agencies technically within the executive branch to exercise substantially non-executive functions.
Even Justice Antonin Scalia, perhaps the Supreme Court’s greatest defender of the Constitution’s separation of powers was inattentive to the ravages that the administrative state wreaked on the structural provisions of the document. In 1984, two years before Scalia’s elevation to the Court, it announced in Chevron U.S.A. v. National Resources Defense Council (1984) what has come to be known as Chevron deference: the doctrine that courts will defer to an administrative agency’s reasonable interpretation of the ambiguous terms of a statute that it administers.
Essentially, once Congress enacts a statute, it has no control over the agency that implements it; but when an agency enacts a rule, that agency decides what it means and has the final say on how it is implemented. That rule has the same effect as a law.
The explosion of rules and regulations over the last 25 years is mind-boggling:
For an analysis of the mixed results of slowing the enactment of new regulations and removing existing regulations, you can read here.
We now have a Congress that has distanced itself from the populace and we are governed by a group of elitist experts:
The separation of powers, and the governing institutions, no longer serve as the principle defenders of a regime of civil and religious liberty. The rights of individuals, and the rule of law itself, are in the hands of the institutions of the administrative state. Consequently, the paramount problem is how to re-establish partisanship on behalf of constitutional government.
Unfortunately, the Republicans have deferred to the Progressives revision of the separation of powers:
The most politically successful, or progressive, party is the one that has most fully embraced the administrative state as fundamentally just, as the good which justifies self-interest on behalf of progress. The conservative party cannot quite accept the alienation posed by the rejection of the past that is required by rational or administrative rule. But it has accepted the political and moral conditions established by historicist, or progressive, thought. As a result, it has lost the understanding of the theoretical meaning that had established the good of constitutionalism. Not surprisingly, progressive parties are confident of their purpose, whereas conservative parties are merely cautious
So those are the facts. We have a Congress that has relinquished its purpose as the legislative branch of government to the administrative state. It cites its role as oversight, but given the number of rules and regulations that have been passed until recently, they probably have little idea of which rules those agencies are creating, except when the most egregious are made (and are widely publicized). Fortunately, the President has demanded the rolling back of many regulations, and restricted the number of regulations that can be written, but given the massive power that has been given to these agencies, and the reliance on their “expertise,” Marini says it will extremely difficult to re-establish the separation of powers and the power balance. He presents a dismal look at the future:
There is no guarantee that Donald Trump can or will succeed in restoring political rule. He has the opportunity to establish a new political landscape, one that is not yet recognizable. It seems likely that the new partisanship he has brought to bear will be at odds with many of the organized interests in Washington. Those interests will defend themselves and their alliances with the bureaucracy. Still, Trump must establish a governing coalition, and this requires the cooperation of a legislature that has been the anchor of the administrative state.
Will Donald Trump receive the support he needs? Do too many Republicans support the status quo? Do they see Donald Trump as a threat to their way of governing?
Donald Trump has been striving to drain the swamp and upend the deep state. He still has a big job in front of him.