Contributor Post Created with Sketch. What is the Administrative State?

 

Since this question has come up more than once in recent conversations on this site, I will address it. Our republic is based upon the doctrine of the separation of powers, which was first fully articulated by Montesquieu in his Spirit of Laws, and which was subsequently adapted by the Framers of the American Constitution and defended by James Madison and Alexander Hamilton in The Federalist.

It is based on a functional division of governmental powers between the legislature, which makes laws; the executive, which enforces them; and the judiciary, which judges particular cases. At the heart of the doctrine underpinning our Constitution is the principle that powers cannot be delegated – that the legislature cannot execute the laws or judge particular cases, that the executive cannot make laws or judge particular cases, and that the judiciary cannot make or execute laws.

The separation of powers is a device for making government at a distance from the people visible, for encouraging legislative prudence and executive responsibility, and for making those who govern us accountable. It encourages public deliberation; it virtually guarantees that there will be low-level conflict between the branches of government; and it makes each branch a watchdog over the others.

The administrative state is based upon a concentration of all three powers – which Montesquieu thought incompatible with liberty – within a single executive agency. In a fashion that constitutes an abrogation of the Constitution, Congress sets up administrative agencies, empowers them to issue regulations having the force of law, to enforce these regulations, and to judge infractions. What this means is that most of what is done by our government takes place in camera behind closed doors – out of sight and out of mind.

Congressmen and Senators love this. It means that no one is accountable for unpopular measures, and it means that they are not held responsible. When I suggest that the administrative state be eliminated, I mean that we should return to constitutional government and the separation of powers – that, before taking effect, every regulation proposed by an administrative agency be discussed in the House and the Senate, be voted on and passed by each of the two legislative branches, and be signed by the President. Then, the government would be visible: we would know who is responsible; we could hold them accountable; and, if need be, we could replace malefactors with honest women and men.

There are 17 comments.

  1. River Inactive

    Perfectly stated. We’re paying dearly now for having wandered so far off the reservation.

    • #1
    • September 9, 2010, at 4:52 AM PST
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  2. The Mugwump Inactive

    The administrative state has become a monster that must be rolled back as soon as the Republicans control both the legislative and executive branches of the federal government. If not done soon, the bureaucracy will reach a critical mass that can never be undone. Think about EU clerks in Brussels who regulate everything from the number of holes in cheese before it can be called Swiss to Eurocrats who will prosecute a greengrocer in Lincolnshire for selling bananas by the pound. The horror, the horror.

    • #2
    • September 9, 2010, at 5:06 AM PST
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  3. Profile Photo Member

    The Secretary of Education sent out an email to 4,000 DOE workers “suggesting” they attend an Al Sharpton rally. What’s more outrageous? The email, or the fact that it had 4,000 recipients?

    • #3
    • September 9, 2010, at 5:12 AM PST
    • 1 like
  4. Profile Photo Member
    mesquito: The Secretary of Education sent out an email to 4,000 DOE workers “suggesting” they attend an Al Sharpton rally. What’s more outrageous? The email, or the fact that it had 4,000 recipients? · Sep 9 at 5:12am

    And those were only the employees in Washington, DC. The USDOE has 50 field offices…

    • #4
    • September 9, 2010, at 5:47 AM PST
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  5. David Nolan Inactive

    While I agree that congressional agencies with administrative power seem out of sync with our founders’ intent, subjecting them to additional bureaucracy seems redundant. If the bureaucratic function can’t be preformed by Congress in the first place, why not eliminate it? Micromanaging it to the point of voting on every regulation fundamentally changes the “administrative organization” into another legislative one. It seems like Occam’s Razor should be taken to this one.

    • #5
    • September 9, 2010, at 5:52 AM PST
    • 1 like
  6. Paul A. Rahe Contributor
    Paul A. Rahe Post author

    There are no “congressional agencies.” They are all executive agencies under the authority of the President. You are right about one thing, however. I am arguing that regulations that have the force of law — regulations that are, in fact, laws — should be voted on by the legislature. My bet is that, if this were the case, the regulatory burden would shrink dramatically. Think about it: responsible, accountable government.

    • #6
    • September 9, 2010, at 5:56 AM PST
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  7. Profile Photo Member

    It’s instructive, every decade or so, to read “Gulliver’s Travels”.

    Greatest satire of bureaucracy ever written. And as fresh today as when it was penned.

    • #7
    • September 9, 2010, at 6:40 AM PST
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  8. Profile Photo Member

    The EPA has devastated the most productive agricultural area on Earth – California’s Central Valley, on behalf of a two-inch minnow.

    The Central Valley Water Project was one of the most massive engineering projects ever undertaken – if I’m not mistaken, it’s the only man-made structure visible from the space station.

    And a few all-powerful bureaucrats have essentially shut it down, causing 40% unemployment in the Valley.

    California’s Congressional delegation simply throws up their hands, pleading helplessness before the law.

    • #8
    • September 9, 2010, at 6:50 AM PST
    • 1 like
  9. Paul A. Rahe Contributor
    Paul A. Rahe Post author

    One addendum to my earlier comment. Congress has no bureaucratic functions. It deliberates, it negotiates, it legislates. Execution, which may require bureaucracy, is for the executive. What worried Montesquieu was a legislature that executed (e.g., the Long Parliament) and an executive who legislated (e.g. the personal rule of Charles I). What we have is a very dangerous muddle. If Congress cannot summon the audacity to pass cap and trade, the EPA can issue regulations instead. What we need is accountability . . . and responsibility (in both senses of the word).

    • #9
    • September 9, 2010, at 7:43 AM PST
    • 1 like
  10. Profile Photo Member
    Paul A. Rahe, Guest Contributor: One addendum to my earlier comment. Congress has no bureaucratic functions. It deliberates, it negotiates, it legislates. Execution, which may require bureaucracy, is for the executive. What worried Montesquieu was a legislature that executed (e.g., the Long Parliament) and an executive who legislated (e.g. the personal rule of Charles I). What we have is a very dangerous muddle. If Congress cannot summon the audacity to pass cap and trade, the EPA can issue regulations instead. What we need is accountability . . . and responsibility (in both senses of the word). · Sep 9 at 7:43am

    Try as I might, I cannot conceive of any way in which accountability can actually be imposed upon the bloated, murky, arrogant Federal bureaucracy.

    The Founders sensed this and labored to write constraints on the growth of government into the Constitution – principally by limiting the revenues available to the Federal government. Let us recall that the Constitution limited Federal revenues to tariffs.

    Now that their vision of a small Federal government has been trampled, we have Leviathan.

    The only solution I can perceive is to dismantle entire Federal departments and starve the remainder through wholesale reductions in revenue.

    • #10
    • September 9, 2010, at 8:02 AM PST
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  11. Paul A. Rahe Contributor
    Paul A. Rahe Post author
    Kenneth

    Try as I might, I cannot conceive of any way in which accountability can actually be imposed upon the bloated, murky, arrogant Federal bureaucracy.

    The Founders sensed this and labored to write constraints on the growth of government into the Constitution – principally by limiting the revenues available to the Federal government. Let us recall that the Constitution limited Federal revenues to tariffs.

    Now that their vision of a small Federal government has been trampled, we have Leviathan.

    The only solution I can perceive is to dismantle entire Federal departments and starve the remainder through wholesale reductions in revenue. · Sep 9 at 8:02am

    Amen, say I. If not now, then when? If not us, then who?

    • #11
    • September 9, 2010, at 8:15 AM PST
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  12. Tommy De Seno Contributor

    Great post. Very educational.

    • #12
    • September 9, 2010, at 8:25 AM PST
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  13. Profile Photo Member
    Paul A. Rahe, Guest Contributor
    Kenneth

    Try as I might, I cannot conceive of any way in which accountability can actually be imposed upon the bloated, murky, arrogant Federal bureaucracy.

    The Founders sensed this and labored to write constraints on the growth of government into the Constitution – principally by limiting the revenues available to the Federal government. Let us recall that the Constitution limited Federal revenues to tariffs.

    Now that their vision of a small Federal government has been trampled, we have Leviathan.

    The only solution I can perceive is to dismantle entire Federal departments and starve the remainder through wholesale reductions in revenue. · Sep 9 at 8:02am

    Amen, say I. If not now, then when? If not us, then who? · Sep 9 at 8:15am

    Well, don’t look to the Mitch McConnell’s of the world. Every time a Tea Party candidate even hints at abolishing the Department of Education, they get the vapors.

    Gosh, it seems that a department established by Jimmy Carter is now as sacrosanct as the Washington Monument.

    Perhaps our only hope is….Godzilla!

    • #13
    • September 9, 2010, at 8:29 AM PST
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  14. Aaron Miller Member
    Justified Right: Great post. Very educational. · Sep 9 at 8:25am

    Like all of your posts, Mr. Rahe. I hope you will return to post occasionally when your week as a guest contributor is through.

    Has the chief executive always had the authority to appoint our nation’s top lawyer, and thereby influence what the Justice Department will and will not prosecute? Specifically, I’m thinking of our Attorney General, appointed by the President, choosing not to prosecute a politically allied group for voter fraud (despite a plethora of evidence) while choosing to sue a state (Arizona) for daring to enforce a federal law.

    Also in regard to Arizona, is it the Constitutional right of the executive branch to choose not to enforce a law passed by the legislature? Or must the executive at least pretend it is trying but failing?

    • #14
    • September 9, 2010, at 8:59 AM PST
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  15. G.A. Dean Inactive

    First I’ll echo the kudos above for a great and helpful post.

    Secondly, I have a sense that the framers were also convinced that while a vast and populous nation could have a common legal foundation, most “administration” was properly a local matter. Limitations in communications may have made that a self-evident necessity at the time, but perhaps there is a fundamental principal at work.

    In any case, the nation was designed so that many government functions that require true administration were assigned to state and local authorities, such that there is both a separation amongst the federal branches but also a separation in scale. The DOE is an example of how this principal has been reversed in recent decades.

    • #15
    • September 10, 2010, at 2:07 AM PST
    • 1 like
  16. Paul A. Rahe Contributor
    Paul A. Rahe Post author

    What needs to be eliminated is simple: the issuing of rules by executive agencies that have the force of law, a return to the separation of powers, a re-acceptance of the doctrine that only Congress and the President, acting together, or Congress, overturning a presidential veto, can make rules and regulations that have the force of law. There is nothing wrong with having executive agencies that put forward proposals to Congress. One does not have to abolish the EPA or the FDA: one has only to restrict both to executive functions and restore accountability. This is, by the way, not my philosophy. It is the principle underpinning constitutional government, and it guided public policy in this country until the New Deal.

    • #16
    • September 10, 2010, at 4:23 AM PST
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  17. Patrick in Albuquerque Inactive

    I read Prof. Rahe’s post and all the comments. It all sounds rather utopian. It is a simple fact that throughout our history big money has gained too much control and needed reining in from time to time. Last nite I gave the example of dirty air. There’s no way the car companies were, on their own, going to clean it up. Hence we ended up with what ultimately became the EPA. Another example: would anyone here argue that the FDA should be eliminated? Prof. Rahe needs to explain how real needs would be accommodated within his philosophy.

    • #17
    • September 10, 2010, at 5:14 AM PST
    • 2 likes