Unmasking the Administrative State

by John Marini

  The actual practice of the political branches of the American government is driven increasingly by the ongoing necessity of accommodating the various interests and constituencies that have coalesced around the administrative state. In other words, it is an element of government itself—the bureaucracy—that has established the purpose, unity, and the rational authority of the political branches. And the courts, too, have sanctioned that transformation by allowing Congress to delegate authority to administrative bodies through the use of vague and unfinished or incomplete mandates that cannot be characterized as legislation, and in no way resemble general law. In short, after nearly a half century of its growth, the bureaucracy has revealed itself to be the conservative defender of liberalism, the keystone of the rational state. Once established, the bureaucracy, and the political, economic, and social forces beholden to it, have sought to progressively replace politics by substituting administrative rulemaking for general lawmaking, and rule by expert in place of that of elected official. In practice, this means that the political rule of law must increasingly give way to executive or administrative discretion.

  The Democratic Party has been far more effective in establishing political and legal control of the bureaucracy and has understood itself as the defender of the administrative state. It has supported bureaucratic expansion when in control of the legislative branch and defended or expanded its prerogatives when in control of the presidency. It was the primary force behind the bureaucracy’s establishment, and it has been perceived by the bureaucracy as its ongoing defender. On the other hand, since 1968, the presidency has, at various times, posed the greatest threat to its expansion. Only after 1994, when the Republican Party took control of the House and Senate for the first time in forty years, did that party attempt to use its control of the legislature as the means by which to rein in the power of the bureaucracy. By that time, however, the presidency had become more than a mere defender of bureaucratic power; every president since Clinton has seized the opportunity to enhance executive power through more detailed control of the administration. The administrative presidency of the past two decades has replaced the administrative Congress of the 1970s and 1980s as the branch of government that has come to dominate politics, by defending and expanding administrative and regulatory power on behalf of bureaucratic rule. As regards the administrative state itself, although it is more powerful than ever, what still remains in doubt is its legitimacy. Although the political institutions have abandoned their constitutional roles, the people still look to the Constitution, not government, as the source of legitimacy. This, not political or policy differences, is at the heart of the quarrel that has come to establish the ground of partisanship in America.

  The bureaucracy has itself become a political faction on behalf of administrative rule. What, then, can Congress do to change the administrative state? There is little incentive within the Washington establishment to change the way it does business. Any real change will likely come only if a president can mobilize an ongoing political constituency that can begin to effectively oppose the entrenched interests and their supporters in government. The administrative state has established tremendous power in Washington, but it has engendered considerable opposition in the country at large. That hostility to bureaucracy is often understood in terms of support or opposition to big government. Since Reagan, the Republican Party has been identified as the greatest threat to the expansion of the administrative state. The Democratic Party, on the other hand (and elements of the Republican Party, too), has embraced the administrative state as the embodiment of the moral and political good. As a result, both the Democratic Party and the bureaucratic establishment are more likely to believe in the essential justice of the administrative state. Consequently, both are more likely to defend the use of administrative power against political opponents who appear to deny its legitimacy.

  Moreover, it has become clear that the neutrality of the bureaucracy, once thought to be the fundamental requirement of its legitimacy, and the condition of its acceptance by all partisans, is no longer understood to be the necessary ground of its bipartisan support. Bureaucratic rule is defended as essential to solving, in a nonpolitical way, the problems of modern technical, or rational, government and society. Moreover, the bureaucracy has itself become a political faction on behalf of administrative rule. When allied with control of the presidency, or one branch of Congress, it is now nearly impossible, institutionally, to prevent that part of the government committed to the perpetuation of the administrative state from preserving the political conditions of unlimited bureaucratic rule. More importantly, the defenders of administrative government are increasingly unable to understand, let alone tolerate, those who fail to recognize or accept the legitimacy of the administrative state. Consequently, both the Democratic and Republican Party defenders, and their defenders within the political institutions and the bureaucracy, are more likely to believe that the practical requirements of the administrative state confer legitimacy on administrative rule, which becomes for them the contemporary equivalent of constitutional authority.

  The growth and consolidation of the administrative state has made it more difficult to control the apparatus of government by political means alone. It is no longer clear that the bureaucracy understands itself as the willing servant of its political masters, once the “masters” came to be perceived as a threat to the administrative state. This reality soon becomes apparent to all who hold elective or appointive office; the bureaucracy is much more hospitable to the interests of the defenders rather than the political opponents of the administrative state. Moreover, the necessity of operating within a framework dominated by the administrative process has made it difficult for members of Congress to understand the importance of defending the prerogatives, let alone the constitutional purpose, of the legislative body itself. As a result, political partisanship on behalf of—or in opposition to—the administrative state has replaced institutional loyalty and threatens to undermine the political conditions of constitutional government itself. The growth of the administrative state has established such expansive powers within the national government that those powers cannot be circumscribed in a manner that is compatible with constitutional limitations. Nor can each of the political institutions, established as separate powers, function amicably in a constitutional manner; that is, one that requires each branch to pursue public policies on behalf of a common good.

  The administrative state, with the blessing of Congress, the presidency, and the Supreme Court, grew dramatically in the last third of the twentieth century, and it continues to expand in the twenty-first. Despite its expansion under both parties, it has not attained legitimacy within the American constitutional order. The Constitution itself remains the source of legitimacy for those in and out of government who are opposed to the administrative state. Until the administrative state becomes legitimized, or constitutionalism delegitimized, the ongoing contentiousness between the political branches of government, the parties, and within the electorate, concerning the desirability of expansion, limitation, or diminution of the size and scope of the federal government, seems almost inevitable.

  5

  State or Constitution? The Political Conditions of Bureaucratic Rule: The Executive, Congress, and the Courts under the Administrative State

  THE CONSTITUTION STILL DETERMINES the institutional structure of the American government, but it no longer appears to animate its politics. Constitutionalism as a theoretical political doctrine is no longer meaningful in our intellectual discourse concerning public policy and the moral foundations of politics. Contemporary politics is animated by a modern theory of the state that denies the power of government can be limited. A constitution is meaningful only if its principles, which authorize government, are understood to be permanent and unchangeable, in contrast to the statute laws made by government that alter with the circumstances and changing political requirements of each generation. If a written constitution is to have
any meaning, it must have a rational or theoretical ground that distinguishes it from government.

  When the principles that establish the legitimacy of the Constitution are understood to be changeable, are forgotten, or are denied, the Constitution can no longer impose limits on the power of government. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals. When that transformation occurred, as it did in the twentieth century, the sovereignty of the people, established by the Constitution, was replaced by the sovereignty of government, understood in terms of the modern concept of the rational or administrative state. The modern state is predicated on the assumption that the power of government cannot be limited; its purpose is to solve not only every political problem, but every economic, social, cultural, and religious problem as well. It was a theoretical doctrine, the philosophy of History, that effected this transformation and established the intellectual and moral foundations of progressive politics. Established on the theoretical foundation of natural rights, constitutionalism has been steadily undermined by the acceptance of the new doctrine of History. The Progressive movement, which is the political instrument of that theoretical revolution, had as its fundamental purpose the destruction of the political and moral authority of the US Constitution. Because of the success of the Progressive movement, contemporary American politics is animated by a political theory denying permanent principles of right derived from nature and reason. In exposing the theoretical roots of Progressivism and the liberalism it has spawned, it is possible to reveal the difference between a constitutional government and the modern rational state. That difference, both theoretical and practical, becomes apparent when comparing constitutionalism as it was understood by the American Founders and the modern administrative state as envisioned in theory by Hegel and the American Progressives in practice.

  A peculiar kind of administrative state, distinctively American, was consolidated within the constitutional order during the past century. It did not appear to violate, in any procedural way, the letter of the Constitution. The political branches voted for its establishment, and the courts upheld most of its provisions. Nonetheless, it has contributed to undermining the political conditions of limited government and self-rule. In attempting to provide administrative solutions to social, economic, and political problems, it undercut or destroyed those institutions within civil society that had established the foundations of self-government, including the family and the church. Consequently, political opposition to the administrative state arose when it became clear that the administrative state had undercut political rule and undermined political consent by depriving contemporary majorities of the ability to control public policymaking.

  The legality of the administrative state remains unquestioned, but legality can only authorize the laws or rules that allow the exercise of power. Legitimacy, however, derives from the reason, or principle, that underlies and justifies law itself. In America, the principle that made it possible to establish a consensus authorizing and legitimizing the use of power was constitutionalism itself. The Constitution is a political document dependent upon a political theory that justifies its claim to legitimacy. It was based on a social compact designed to secure those natural rights (equality and liberty) that exist prior to government, and it establishes government’s purpose in terms of their defense. That theory derived from a reasonable, or philosophic, understanding of nature and human nature, or natural right. Its political or practical success is dependent upon a separation of the powers of government. Human nature and the nature of power itself required such inventions of prudence. The power of government must be limited because political conflict, or factionalism, is sown into the nature of man. Those limits are best ensured by making ambition counteract ambition.

  No particular branch, or individual, can establish the political meaning of the Constitution. All of the respective branches, and their members, derive their legal authority from the Constitution. And, they must exercise those powers on behalf of a common good, the meaning of which is established in the political or institutional rivalry created by the structure and moral authority of the social compact, or constitutionalism itself. The ongoing process of politics, responsive to coalitions capable of becoming majorities, must engender a governing consensus; no branch of government can, by law or judicial decision, establish itself, or government, as the ground of legitimacy. The Constitution seeks to regulate political conflict and control passion or will, but no human enterprise can end such conflict or transcend it. At best, as James Madison noted, in a government dominated by passion or will, “The passions, not the reason, of the public would sit in judgment. But it is the reason, alone, of the public that ought to control and regulate the government. The passions ought to be controlled and regulated by the government” (Federalist 49). In other words, prior to government, it is the reason of the public, or the principle of constitutionalism, that authorizes government and legitimizes the regulation of passion. It is the Constitution, therefore, that establishes the ground of political right by protecting individual liberty and by preserving political conflict in civil society. It does so by promoting differing views of the public good within the government itself, by separating its powers, and by providing independent constituencies in support of each branch. In short, government cannot easily establish, or justify, unified will as the ground of political right.

  However, the modern administrative state becomes intelligible only in light of a philosophy of History that establishes passion as the driving force of History and will as the foundation of morality and ground of legitimacy.1 The state is revealed as a rational and ethical organization. Its government’s legitimacy is established through the promulgation of law, which is a reflection of its sovereign or moral will. Only when will establishes the ground of morality does it become possible to end quarrels over the fundamental principles that give rise to political conflict. When law, in the service of moral will, establishes right, its implementation is no longer understood in political terms. Politics is replaced by administration. Consequently, administrative rule must be derived from knowledge or organized intelligence. The problems of economy and society come to be understood in technical or scientific terms, not as political dilemmas. In short, the rational state presupposed the end of politics and religion and its replacement by an uncoerced rational society, one freed from factionalism and superstition. It also presupposes the end of the necessity of constitutional, or limited, government. Furthermore, it looked forward to a time when the social sciences would become the applied sciences of the rational state.

  The administrative state’s power rests upon its legality, but its legitimacy remains in doubt as long as public sentiment remains wedded to the principle that established and justified constitutionalism. Moreover, it has not succeeded politically in establishing the rational state as the ground of legitimacy. It is difficult to do so, because it has become increasingly clear that the growth of the administrative state has eroded the sovereignty of the people. As the power and authority of administrative rule has come to dominate civil society it has also alienated the affections of the people with respect to its government. That disaffection has resulted in divided government. The political branches have reorganized themselves in such a manner as to be most attentive to the special economic, social, cultural, scientific, and environmental interests, which are regulated by the rulemaking power of the administrative apparatus. The political branches appear to oversee, intervene, or referee the process by which the private organized interests engage in an ongoing way with the rulemaking administrative apparatus. However, the price of such accommodation of private interests is the inability of the elected government to pursue a common good. As a result, the political parties find it increasingly difficult to mobilize majorities capable of creating the kind of political consensus that could establish stable governing coalitions that have public support.

  Under these conditi
ons, only the courts seem to be required to take the Constitution, or the common good, seriously. But even the highest legal—ostensibly nonpolitical—branch of the national government, the Supreme Court, can justify the use of power only in terms of its status as a coequal branch of government, whose authority is also derived from the Constitution. It purports to discern the authoritative meaning of the Constitution by interpreting its provisions in light of contemporary conditions. It is able to do so without political interference only because the two branches (Congress and executive) have acquiesced in allowing the court this power on the condition that the court sanction, or legitimate in law, their role within the administrative state. Although one branch of government, itself established by the Constitution, can exercise its will as the justification for the authority of the other two political branches, it cannot do so without compromising the political principle of constitutionalism. Nonetheless, the courts have become fundamental players in the political and policymaking process. In legitimizing the policies of the agencies, the unelected courts have protected the political branches from responsibility for policies that are derived almost exclusively from the administrative process. Even when they are deeply unpopular, the electorate has no access to the centers of power in the administrative state. Congress, or executive branch officials, mandate and ratify the administrative details of policies that are formulated by the bureaucracy, allowing the judiciary to reign supreme in the realm of political principles and public morality. The Supreme Court determines what passes for the moral will of society by construing what passes for the contemporary meaning of the Constitution.