"The administrative state is the leading threat to civil liberties of our era," says Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the recent books, Is Administrative Law Unlawful? (2015) and The Administrative Threat (2017). "We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts, but we have within that an administrative state, a state that acts really by mere command and not through law." Hamburger argues that by reducing the role of elected officials to set policy, the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power.
Before he left the Trump administration, former White House Chief Strategist Steve Bannon famously vowed to "deconstruct" the administrative state—the collection of bureaucrats, agencies, and unelected rule-making bodies who decrees and diktats govern more and more of our lives.
And many of the president's picks at places such as the FCC, the FDA, the EPA, and the Department of Education seem to be doing just that: cutting regulations and policies that come not directly from Congress but from administrators who decide, say, that the FCC has the ability to regulate the internet as a public utility, and that so-called net neutrality is a good idea. Trump's appointee to the Supreme Court, Neil Gorsuch, is widely understood to be a critic of the administrative and some of best-known ruling challenged the validity of rules laid out by federal bureaucracies.
Reason's Nick Gillespie sat down with Hamburger to discuss why the administrative state is unconstitutional, and what, if anything, can be done reduce its power.
Edited by Ian Keyser. Introduction produced by Todd Krainin. Cameras by Jim Epstein and Andrew Heaton.
Music "Integration Blues" by Javolenus
Available at ccmixter.org http://ccmixter.org/files/Javolenus/56235
Under CC BY NC license https://creativecommons.org/licenses/by-nc/3.0/
This is a rush transcript. Check all quotes against the audio for accuracy.
Nick Gillespie: Let's start by defining administrative law in the administrative state. What does it do and where does it come from?
Philip Hamburger: Administrative power can be administered many different ways. Some people use the phrase to describe all government power in executive, and that's rather too broad. It's indiscriminate. I use the phrase to describe extra-legal rulemaking and adjudication. Exercise of power to bind Americans, to control Americans, not through the pathways set out by the Constitution and acts of Congress and acts of the court, but through other edicts, typically from agencies.
Gillespie: In your recent book, Is Administrative Law Unlawful, you liken the practice of administrative law to off-road driving, and you write, 'The problem examined here is thus not where the government is heading, but how it drives. To leave the roads laid out by the Constitution can be exhilarating, at least for those in the driver's seat. All the same, it is unlawful and dangerous.' So, administrative power, it's not that Congress doesn't make a law and then it gets implemented. That's not administrative power. Congress passes a law that says, 'we want clean air.' And then the EPA says, 'okay, in order to implement that law, we're coming up with all of these different aspects.'
Hamburger: Right. The danger is what the agencies do. Congress certainly has power to enact all sorts of laws regulating us, and so this is not an argument against regulation. We can debate the merits of particular regulations. But rather, it's an argument against having the executive or independent agencies, or more or less, a part of executive agencies, make rules that bind us in the same manner as laws enacted by Congress.
Gillespie: Right. But, they're not subject to the same kind of public discussion or vote. So, is the administrative state bad because it ends the separation of powers? Because the executive branch gets to make more and more decisions? Or, maybe and/or, it's bad because the rules can't really be ... you know, they're implemented in a non-democratic or non-representative way.
Hamburger: I view it as the leading threat to civil liberties of our era. We have a republic, we still have a republican establishment of the Constitution. Meaning, we have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts. But we have within that an administrative state, a state that acts really by mere command and not through law. And that adjudicates not in courts with judges and juries, but through its own tribunals.
Gillespie: So, for you-
Hamburger: It's central government that worries me.
Gillespie: What are leading examples for you? The most current, telling examples of the administrative state.
Hamburger: We can find this in most agencies. Agencies get a loose instruction from Congress, for example, 'make air clean.' And then, the agency will define 'clean' and make a host of rules requiring how we should regulate our lots and our businesses and our farms and the rest. These rules are not enacted by Congress, and that's why this is really a civil liberties problem. We should be able to live under rules made by the folks we elect. That's the whole point of having a republic.
Gillespie: To think about something like the Clean Air Act or whatever. These are massive laws and how do you answer critics who say, well, of course you're gonna kind of push a lot of the responsibility for actually writing up the rules that implement the goals of the law to bureaucrats. You don't wanna, I don't know, who's your least favorite congressman? You don't want him defining pollution for you, right?
Hamburger: There's a danger of error in Congress. There are perhaps 500 sources of error in Congress, and there's only one source of error perhaps in agency. But in fact, that makes it all the more desirable to have this done in Congress, because there's also a chance that folks will get it right. Whereas in an agency, there's great danger of a single point of view being imposed that isn't really responsive to the people. The reality is that we had a revolution and we established the Constitution as a great experiment in human history to see if we can govern ourselves, and to create an alternative system of government which looks more monarchical, which is a matter of the most military command, is really a profound departure and a denial of everything we expect when we see people voting rights–
Gillespie: When in looking at the administrative state or the rise of administrative law, a lot of people point back to a 1984 case that went to the Supreme Court. That was Chevron v., what was it, The National Resources Defense Council, could you explain that, and is that the kind of original sin of the administrative state?
Hamburger: It's by no means the original sin, it's just one of many, I'm afraid.
Hamburger: But, it is a type of deference, a judicial deference, to agencies. Agencies acquire lawmaking power by express authority from Congress, but sometimes Congress doesn't give them that authority, nonetheless they take it to make rules. They say that the statute is ambiguous and therefore, in order to interpret it, they have to fill in the gaps as it were. And that's what the Chevron case really allows and systematizes this.
The awkwardness of all of this is that where the government is a party to a case, the judges, when they defer to the agency's interpretation of the statute, are in fact adopting legal position of one of the parties in the case before them. In other words, the judges become systematically biased. It's really a genuine civil liberties problem, because our procedural rights are the bulk of the Bill of Rights, and primary amongst these is due process of the law and jury rights. And when a case that's decided by the administrative tribunal comes up before a court, what does a judge do? The judge will defer to the agency in the facts and defer to the agents in the law in the cases like Chevron, and the result is systematic bias, even in the courts. So, the problem isn't just the agency but the courts themselves.
Gillespie: Is the bias always towards the experts? Is it a part of the cult of the experts, or is it results-driven? Or is it both, I guess.
Hamburger: For the courts I suspect it's principled in some secondary sense, not high principles of due process and jury rights, which are thrown aside. But principled in the sense that they don't feel confident to make these decisions themselves and they'd rather leave interpretation to the experts. The awkwardness is that they're there by allowing agencies to make law and the judges themselves are banding their independent judgment, and in fact being biased in favor of the government.
Gillespie: So in something like the Chevron case, would you have preferred, or would a better outcome have been, for the courts to say, you know what? We can't interpret this but neither should the agency and they should somehow kick it back to Congress to say if you want clean air, you gotta be more specific in the way you write laws?
Hamburger: There's no need for the judges to defer to the agencies if they cannot find meaning in statute. Yes, they should just let it go.
Gillespie: Mm-hmm (affirmative). One of the things that Trump's Secretary of Education Betsy DeVos has done is she's changing the definition of a policy that came out of the Office of Civil Rights and the Department of Education. A 'Dear Colleague letter' that suggested a lower level of proof for cases of sexual assault on campus, the creation of hostile workplaces. Is that the type of administrative law that's problematic?
Hamburger: That's yet another mode of making rules by agencies. At least in much of their rule making, the agencies will follow various administrative procedures to create the rule. Very often, in fact increasingly, one finds administrative powers an invasion even with administrative limits of rule making, and guidance falls into that category. However, the agencies will interpret their own rules in issuing mere guidance. It's a gentle hint, a governance by a wink and a nod, not even by rule making.
Gillespie: So, what is driving this if it's not specific legal rulings, or rather, they kind of are mileposts towards a vaster and vaster administrative state. But, who's setting that direction that we seem to keep driving towards?
Hamburger: Gary Lawson, a scholar at Boston University, has noted the rise and rise of the administrative state. The administrative power always seems to expand, whether under Democrats or Republicans, and I think the reason for this is when asked to think of the administrative power, really is an invasion of regular pathways. First invasion of Constitutional pathways for making law and adjudicating, and then even an invasion of administrative pathways. So, you get ever less formal modes of binding Americans, of commanding Americans and telling them what to do. This is just the natural progress, I think, of power always to escape its limits.
Gillespie: What you've made an argument though also, or rather it's a provocative coincidence, or maybe not a coincidence, but that as the vote expands to include more and more people who are seen as maybe perhaps less and less deserving of the vote, or less and less knowledgeable. So, right at the time where people without property get enfranchised; women, blacks, etc. Their votes count for less and less because the administrative state is calling all the shots. Is that just a coincidence, or there is something more sinister going on.
Hamburger: There's a very disturbing linkage between these two developments. You think of the main two developments in American law since the Civil War. One has been equal voting rights, and the other one has been the administrative state. So, are they connected? Maybe they are. What I think happened was that as we got increasing suffrage for blacks, for women, and then not just a formality but as a reality in the 1960s, the knowledge class of those persons who felt as attachment to their abstract academic knowledge rather than to local hierarchies of representative government, became very disturbed by the results. They were happy to see equal voting but they didn't like the results, and Woodrow Wilson's quite explicit in this. He says it's very difficult for progressive reformers to persuade persons who are not of the older stocks, as he puts it, and then he specifies persons who are, for example, Irishmen, Germans, and Negros. This racist element, I think, is not central but it actually is driving this. It's a disdain for governance by the unwashed masses.
Gillespie: Right. I assume there must be records of this, but the progressive must have been when women get the vote and then they vote for Warren G. Harding. It's like, what were we thinking, right? Because, no progressive wanted him a thousand miles within the White House.
Hamburger: Right. There's a very disturbing degree to which administrative power tends to increase 15 years or so after each expansion of suffrage. 1870, blacks get the right to vote. 1880s, we get the first federal agencies. 1920, women get the right to vote. 1930s, we got a further expansion of administrative state. 1960s and so forth.
Gillespie: Can I ask? So, did the administrative state expand, if you look at the Civil Rights Acts and voting rights acts of the mid-60s, when Ronald Reagan hits, did the administrative state expand under him?
Hamburger: It expands, really, in the 1970s. So, it's not long after the tumult of the '60s we get the administrative state, and therefore more orderly mode of governance that suits the knowledge class.
Hamburger: I don't think there was a conspiracy here, just the natural progress of events, but it constitutes really a profound bait and switch of a sort that we really need to take notice of. The administrative power is the greatest threat to equal voting rights because it allows you the formality of electing your representatives, but takes away the administrative power and places it in safer hands, as it were.
Gillespie: Are even people who support the administrative state openly ... in the same way that there are mostly fair-weather federalists, people say, 'I wanna devolve power down to a lower set of government that's closer to the place where the rules are taking place, etc.' Very few people are principled federalists. The Republicans and Democratic parties will switch sides on states rights or devolving power whenever it suits the outcome they want. Even John C. Calhoun was a fair-weather federalist or a states-righter. Is that true also of the administrative state?
Hamburger: It may be true, I think, of a large number of politicians. I haven't surveyed it, I don't really know, but one suspects so. Certainly, Democrats are not the only supporters of the administrative state, most Republicans probably are, too. The real division isn't politics, nor even ultimately race, although I do think minorities get terribly hurt by the administrative state and its homogenizing tendencies. The real division is class. The knowledge class appreciates the sort of power that's exercised by people, well, like themselves. That's less obvious to persons who aren't members of that class or who are minorities that get hurt by the administrative state.
Gillespie: Do you take Donald Trump, and obviously it was Bannon who famously said he wants to deconstruct the administrative state. Trump is an interesting case then, because in many ways he's the second coming of Andrew Jackson, he's a very commanding person who wants the NFL to change its policies based on his blood sugar levels at a given moment. Is he, do you think, is he good on his promise to kind of get rid of the administrative state or hold it back?
Hamburger: Well, we've yet to see. Thus far, there have been great many rules that have been overturned, but overturning a rule, one way or another, isn't really the point. This is not an argument for the merits of one regulation or another. The real test will be, will they cut back on the types of power that could be used by either party, for good or for ill, but in the long term for great ill because it undermines our Constitutional system?
Gillespie: Well, can you lay a wager there? Are you confident or are you optimistic that-
Hamburger: I have no idea, I have no idea, but I look forward to seeing. It will be interesting.
Gillespie: Well, that's a cop-out, but we'll stick with that.
Hamburger: Well, I'm a lawyer.
Hamburger: And, I place trust, although many politicians can do good things, I place trust actually in litigation.
Gillespie: And that's different, right? In terms of some critics of the administrative state, and Charles Murray, the writer and scholar at the American Enterprise Institute, has written a lot about this and he has called for a kind of judicial attack or using the courts to gum up the ability of agencies to pass laws. But you critique him in your writing. You say that he's less interested in the process and more in the outcome. Is that accurate?
Hamburger: I think Charles Murray is very worried about economic costs of regulation, and that's a different sort of argument. My argument is, this is a civil liberties problem. This really guts our civil liberties. And take procedural rights, for example. These used to be guarantees against government. Now, these are just another option for government in acting against us, because it can act through the courts with due process of juries, or simply evade that. So I think, unlike Murray, I would treat this as a civil liberties issue and that means careful systematic litigation, not gumming up the works, as it were.
Hamburger: I think a more straight-forward attack on this civil liberties issue is more to the point.
Gillespie: Do you think, is Neil Gorsuch truly a ... is he the de-constructor of the administrative state on the Supreme Court?
Hamburger: I have no idea. My only hope for him, and all of his colleagues, is that they will adhere to the Constitution including due process, jury rights, and the right to independent judgment from a judge, all of which are guaranteed by the Constitution.
Gillespie: So, you're quite mad, aren't you?
Gillespie: You're insane. A lot of your work is informed by this, and obviously even this conversation, there's very much of a Hayekian, a Friedrich Hayek strain in your thought in terms of insisting on rules that are visible and kind of simple and everybody has to play by them, as well as the idea of seeking knowledge. I mean, I love the idea, it's kind of a reverse of Hayekian idea of the dispersion of knowledge, you want to have ignorance dispersed as widely as possible. The ability, it's better to have 500 people making bad decisions than just one because you can counter it more effectively, I guess. But, what is your relationship to someone like Hayek, or your legal philosophy?
Hamburger: I actually never thought of myself as a Hayekian, although I'm flattered by the thought. I confess, I'm just a lawyer, and-
Gillespie: God, this is ... so, you're like Gerry Spence, the great 'I'm not one for book-learnin"', but ...
Hamburger: My interest in philosophy runs elsewhere than Hayek. It runs further to past. But, the goal here is actually fairly ecumenical and simple. It doesn't involve deep questions in philosophy. We have the Constitution. It's designed to govern us in ways that all of us can understand. And in its place, we have an elaborate scheme in which one scarcely knows who's producing the law but has limited input, and in which it's applied to use without judge and jury and without due process, all of which were designed actually to limit guarantees of such things, were designed to limit administrative adjudication. So, we're reaching deep into the past of absolute power, and in fact, administrative power is drawn from the German version of absolute power. This is a very dangerous game that's being played, and we should be aware of that and we need to fight it.
Gillespie: The political scientist or historian Arthur Ekirch wrote in a book called The Decline of American Liberalism, that even in the colonial period as soon as liberal rights, kind of classical liberal rights of individualism, autonomy, some means of choosing among competing versions of life for at least some portion of the colonists, as soon as those were articulated, power was starting to be centralized. It was kind of disappearing as soon as it was being said. If it's not the 1984 Chevron case, if it's not Woodrow Wilson, why do people even bother coming up with the Constitution if immediately they're gonna start saying, no, no, we're not going to actually live by the rules that we just created, we're gonna aggregate more and more power into fewer and fewer hands.
Hamburger: That's actually precisely why we have a Constitution, because we can appeal to it publicly and with litigation to defend our freedom. The danger is not someone else other than ourselves, it lies within us. The fibs we tell ourselves and that the judge has, unfortunately, come to believe, they're all very principled. That they've come to believe that we don't really need jury rights when it comes to administrative hearings. We've said due process is satisfied by an administrative process. That a rule is no different, really, than an enacted statute.
So, what we need to do is actually just be honest, and administrative rule is not a statute adopted by our representatives and it is not legally binding. It's a mere command, a mere edict, an administrative adjudication, it has no due process, and it's alleged to have a little bit, but it has no due process as it was originally understood. Due process comes from the courts, it is no jury. And when the judges go out of their way to accommodate all of this, they end up corrupting their own processes, because they end up being systematically biased about the wrong facts.
Gillespie: What is to be done, then, if the idea of launching massive court attacks against things to at least stop these laws from moving forward? If that's not gonna work, what is the best case for it and what is the role, you're a law professor, what is the role of ideas here as ... or do we need some kind of horrible incident where finally it shows how the administrative state is crazy and out of control?
Hamburger: Right. Lenin would be happy for that last instance.
Hamburger: I would prefer something much more moderate. It strikes me that the executive could begin to pull back on administrative power, whether it will, we get to see, but I would welcome that. But in the meantime, we can do much. This conversation is an opportunity to speak candidly about the problem, and candor is the essence of the solution. Then, in addition, that those arguments that are candid, that say accurately what is happening and what the judges have found themselves to be doing when they go down this dangerous path, that can be brought into litigation. Not massive litigation, but careful, thoughtful litigation that appeals to the judge's best instincts. Judges generally are principled, judges of all sorts, and we have to appeal to their ideals about themselves and to show how they've, unfortunately, departed from those.
Gillespie: Okay. Well, we'll leave it there. We've been talking with Philip Hamburger. He's a professor at Columbia Law School and he's the author, most recently of, The Administrative Threat. For Reason, I'm Nick Gillespie.