A Constitutional Administrative State?

 
 

All governments must collect taxes, punish criminals, enforce building codes, and license certain professions. The real debate is over how the administrative state acts and under what powers. What would a constitutional administrative state look like today?

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The mere mention of bureaucracy makes many people’s eyes glaze over. Even attempts to gin up interest by using scary sounding terms like the “deep state” have yet to hold the public’s attention for very long. Yet bureaucratic power is the source of heated debate among politicians, intellectuals, and scholars. For liberals, the administrative state is the positive force by which modern government remolds society to make it more democratic and egalitarian. For conservatives, it elicits concerns about an unconstitutional “fourth branch” of government that threatens to make a mockery of liberty and self-government.

In a rich and detailed new book, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, political scientist Joseph Postell analyzes the evolution of the administrative state and assesses its constitutional standing. He argues that there is an unresolved tension between modern bureaucratic power and American constitutionalism. To make this case, he traces the development of administrative power in the American political system from the founding to the present. He seeks to show that throughout the nineteenth century the bureaucracy was held in check by constitutional constraints. It was only after the Progressives of the early twentieth century developed new modes of bureaucratic power (which largely had to wait until the New Deal to be implemented) that the administrative state exceeded constitutional barriers. Today, the bureaucracy is largely based not on constitutional but on progressive principles.

Postell succeeds in telling what is admittedly dense and complex history. Administrative law tempts scholars into either vague abstraction (in an effort to cover a wide-range of government activities) or mind-numbing detail (in an effort to get to the core of agency decisions). Mercifully, Postell avoids both temptations, steering a middle course that is accessible and readable. Although he leaves some important questions unanswered, his book is a good foundation for more productive conversations about the contemporary administrative state.

The Founders’ Vision of Administrative Powers

Postell begins with how the founders inherited and refined a set of principles that defined constitutional administrative power. These were “lawmaking by elected representatives, unity of the executive, the separation of powers, and judicial review of administrative action.” These principles reduced administrative discretion, preserved the president’s responsibility for administrative decisions, and empowered the courts to invoke judicial review of administrative actions.

Today’s bureaucracy clearly does not embody those principles. It is staffed by career employees, protected by civil service statutes, who are empowered to formulate rules that have the force of law, implement those rules with considerable discretion, and adjudicate disputes that arise from their application. Postell’s book chronicles the shift from one type of administrative state to the other.

Postell argues that throughout the nineteenth century, the administrative state adhered to the founders’ principles of republicanism and separation of powers. The founders’ definition of republicanism entailed that all laws must derive from elected representatives (what came to be known as the non-delegation doctrine). In this view, Congress could not delegate powers to departments, because doing so would undermine representative government. In the Jacksonian era, Congress largely upheld the non-delegation doctrine. President Jackson, Postell shows, reinforced the principle of a unitary executive responsible for administrative actions, firmly establishing the president’s power to remove officers at will. The removal power facilitated the spoils system as presidents from a new party could remove officials appointed by previous presidents of the prior party and install their loyalists.

Postell maintains that traditional views of administrative power prevailed after the Civil War. Contrary to some accounts, he argues that the Pendleton Act and the creation of the Interstate Commerce Commission did not reflect a first step in the direction of today’s administrative state. Rather, the debates surrounding their passage reflected an attachment to constitutional principles, not to progressive ideas. Postell shows that those involved in the debates over the laws were not simply attacking (or defending) the patronage-based political parties or the railroads. Instead, they were concerned about constitutional strictures.

The Ascent of Progressivism

The real change, Postell argues, came in the early twentieth century, when progressive reformers advanced a new theory of administration that rejected separation of powers and representation and sought to reduce judicial review of administrative actions. In short, the progressives sought to reconfigure the distribution of power among American political institutions to make way for a more powerful bureaucracy.

Postell shows how the progressives attacked the principles of republicanism and representation. Their attack proceeded on two fronts. First, they pushed for greater direct democracy through the enactment of the initiative, referendum, and recall in many state and local governments. No representatives were needed if the people could rule directly. Second, they redefined democracy as an end rather than a process. So conceived, democracy becomes more about getting the “right” results than about how they are achieved. To ensure the realization of the right outcomes, power needs to be handed to bureaucratic experts who will secure the people’s best interests.

Because elected representatives are prone to mistaking short-term political advantage for the long-term public good, progressives sought to transfer power away from elected representatives to bureaucratic experts and to insulate the latter from politics. Ever since, however, progressives (and their liberal heirs) have struggled to square the circle of how expert administrators with discretionary powers could be brought under political or popular control.

The progressives also sought to weaken the principle of separation of powers. To refashion society, modern bureaucracy needed more power and more discretion to use that power. It needed to be able to combine legislative, executive, and judicial powers. The result was an alphabet soup of commissions, boards, corporations, and authorities that would exercise such powers at a significant remove from presidents and members of Congress.

Finally, progressives sought to blunt the force of the principle of the rule of law, as it had been traditionally understood. In their view, detailed laws should not constrain experts and courts should defer to agency decisions and intervene as little as possible. The rule of men was not just to be permitted but encouraged, so long as the right men were in charge.

The progressives established both the philosophical and practical precedents that paved the way for the dramatic expansion of the administrative state during the New Deal. Franklin D. Roosevelt “solved” the problem of the lack of democratic control of the new bureaucratic leviathan by claiming that the president would “bridge the gap” between politics and administration. His legacy has produced a paradoxical battle between liberals, who favor government action but want greater judicial review of agency decisions (especially with a Republican in the White House), and conservatives, who favor government restraint but seek greater judicial deference to presidential control of the bureaucracy. The current state of law under the Chevron decision is complex to the point of absurdity, as different levels of judicial deference apply to different types of agency decisions.

The Battle Over the Administrative State

Postell’s book demonstrates that the battle over the administrative state is a theoretical and practical one about who should rule. At the theoretical level, one view holds that the people should rule through the Constitution and the elected and appointed offices it sets up. Democracy is the process by which elected representatives and appointed judges handle issues as they arise and the people rule insofar as the Constitution is followed. The other view is that the Constitution needs to be reinterpreted to adjust for the fact that modern society requires expert management to secure the people’s long-term interests. Democracy is conceived as a set of outcomes such as reduced economic inequality and increased social solidarity.

In practice, the battle over the administrative state is a battle over the balance of power among America’s political institutions. In the nineteenth century, Congress, the courts, and the parties were strong, and presidents and administrators were weak. In the twentieth century, presidents and administrators became strong, Congress and the parties weak, and the role of courts contested.

Postell ably charts these developments and the thinking behind them. He shows what is at stake when choosing what theory to put into practice and traces each one’s practical effects. He reminds readers that the mere existence of the administrative state is not unconstitutional or inconsistent with the rule of law. Indeed, governments have always regulated all kinds of activities—and people expect government to do such things. All governments must collect taxes, punish criminals, enforce building codes, and license certain professions. The real debate is over how the administrative state acts and under what powers. Postell makes a strong argument that the administrative state was, for more than a century, in accord with the Constitution and the founders’ principles. It is only over the last one hundred years or so that things have gotten out of hand.

Unanswered Questions

However, Postell leaves a number of big questions unaddressed. He regularly asserts that the current administrative state is in “tension” with or a “challenge” to the Constitution and that it suffers from a “crisis of legitimacy.” He never quite comes out and says it is unconstitutional, but he seems to imply it. Yet, if the progressive version of the administrative state constitutes a crisis of legitimacy, it is one of the longest running crises in American history.

The reader is left wondering: what would a constitutional administrative state look like in the twenty-first century? How should it operate? Even if one takes Postell’s nineteenth-century administrative state as the model, many questions remain. Is the contemporary Congress up to the job of producing highly detailed laws that would constrain administrators? Should federal courts exercise even more power than they already do over the operations of government? Should merit systems and civil service protections for federal employees be eliminated? Would the federal government need to do far less than it does today? If, by some miracle, a constitutional administrative state could be created, would that state be any more effective in dealing with the nation’s problems than the current unconstitutional one?

Of course, the big obstacles to improving the administrative state are political. Perhaps Postell doesn’t offer such an account because his historical survey reveals that changes in the administrative state alter American constitutionalism and American constitutionalism simultaneously shapes the administrative state. The result is something of a muddle that is unsatisfying for both those promoting greater administrative power and those defending constitutional principles. Perhaps efforts to push the administrative state in a more constitutional direction will only further muddy the waters.

Ultimately, Postell has distilled the distinct strains of American thought about the administrative state and how they have interacted in concrete legal and political battles. That is an important step that will hopefully move discussion of the administrative state in a more productive direction.

Daniel DiSalvo is an associate professor of political science at the City College of New York-CUNY and a senior fellow at the Manhattan Institute.

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