Unmasking the Administrative State

by John Marini

  The attempt to approximate those abstract theoretical principles within an actual regime required a government of separated powers because of the practical necessities of politics.8 There are limits on human action imposed by nature itself. The Founders did not simply choose to structure the institutions of government and society in the manner prescribed in The Federalist; they were forced to acknowledge a fundamental political reality: factionalism, or conflict, is sown into the nature of man. Therefore, politics is an enduring part of the human condition. That perspective was undermined by the political thought that established the theoretical ground of Progressivism. The leaders of the Progressive movement in politics sought to destroy the separation of powers on the assumption that politics would give way to administration and expertise could replace partisanship.

  The modern rational, or administrative, state is established on the foundation that government must be the embodiment of a unified will. That will is developed in the process of mobilizing majorities through political parties animated by the leadership of the political branches of government. When the will is established in law by the political powers of government, the task of carrying out that will is essentially a technical, or administrative, task. For that reason, Woodrow Wilson would insist that the separation of powers inhibited a unified will; the proper separation is not one that separates the branches of government, but one that creates a distinction between politics and administration. Politics establishes the moral will of a people in the form of its laws; the purpose of administration is to carry out that law, or will, in a technically rational manner, one that transcends political partisanship.

  In this Progressive understanding, when the rational, or historical, process has advanced sufficiently to produce a democratic society, limited-government constitutionalism is no longer necessary. In the modern state, Wilson believed, government cannot be a threat to the liberties of the people. Indeed, the purpose of government is to establish the rights, and relieve the necessities, of the people. Moreover, the political questions, and disputes over principles, would have been resolved by the historical process itself. The emergence of the rational state has revealed and reconciled all of the fundamental political contradictions of the past. As a result, it becomes possible to transcend politics in the realm of practice. Consequently, just as the theoretical problems are no longer understood in terms of theoretical reason, the practical problems of government are no longer understood in terms of practical reason or political prudence. Rather, the “inventions of prudence” that had established the political science of The Federalist were consigned to the ash heap of History. Morality itself, Kant had argued, could only be derived from practical reason, or will, not theoretical reason as Madison had supposed.9 Once morality is made intelligible as will, all of politics is reduced to a technical task—that of carrying out or administering the will.

  In America, the administrative state was not institutionalized until well into the twentieth century. Only after Congress reorganized itself in such a way as to augment its administrative authority at the expense of its political power did it become difficult for the political branches to understand, let alone utilize, their powers in terms of their constitutional purpose. As a result, the separation of powers could no longer serve as a defense of the political on behalf of the people, rather than government. The power and authority of the administrative state cannot be limited; its establishment could not but undermine the principle of limited government, or constitutionalism. Consequently, the political institutions found it necessary to reorganize themselves so as to be able to operate in the service of the modern administrative state. Insofar as the Constitution is still meaningful, it is only in the realm of law. And, it is therefore understood primarily as a legal document. All of the branches of government now seem to agree that only the Supreme Court has the obligation to take it seriously. Constitutionalism, as a theoretical and political doctrine, is no longer able to establish and defend the conditions of limited government and democratic self-rule. No legal doctrine can preserve the conditions of political freedom; it can only attempt to legitimize will.

  The importance of the administrative state has not been lost on those constitutional law professors who specialize in administrative law, scholars such as Cass Sunstein, Peter Strauss, and Jerry Mashaw. As Harvard Law Professor Adrian Vermeule has observed:

  The administrative state is the central and unavoidable topic of modern constitutional theorizing. The single most striking difference between the constitutional arrangements of the late 18th century and today—“constitutional” in the sense of the actually obtaining structures and practices of government—is that the modern state is, by any conceivable measure, largely an administrative state. In the institutional landscape of the late 18th century and well into the 19th, one may see precursors of the administrative state, but one simply does not observe the massive and elaborately reticulated bureaucracy that structures and constitutes the experience of government for almost all citizens.10

  It is difficult for any observer to deny the reality or the pervasiveness of the administrative state. However, it is questionable whether those observers, who view politics from the perspective of the administrative state, have not already been shaped by the theory and practice of the modern rational state. Their views, derived from a philosophy of History, all presuppose the obsolescence of the political theory that established the principle of constitutionalism. They are shaped by, and their scholarship is dependent upon, the social sciences that were created to generate knowledge on behalf of the administrative state. In short, the scholars who study administrative law, and the lawyers and social scientists who analyze its laws, economics, and society, do so as part of the apparatus of the administrative state. Their status, and authority, is dependent upon the technical and rational sciences that were intended to be the applied sciences of the administrative state. Indeed, they are its handmaidens. Thus, it would seem that the only reason for taking the Constitution seriously is not for reasons of its intellectual or theoretical authority, but because of political necessity. It is a tacit admission of the fact that the bureaucratic state cannot establish political legitimacy apart from the Constitution.

  The difficulty of analyzing the Constitution in a manner that is not prejudicial to the political principle of constitutionalism arises from the very fact that the disciplines of the social sciences, and the positivism of the law schools, have been structured on the foundations of the theoretical primacy of the rational state, based on a philosophy of History. The Progressive theorists themselves were the founding fathers of the social science disciplines. They established science, or positivism, as the authority not only for law, but for all meaningful human knowledge. From the beginning, they were well aware of the necessity of undermining the political theory of the American Founding. They did so in order to destroy the legitimacy and authority of the Constitution. They rejected the Constitution because it had limited the powers of government and subordinated administrative authority to political control.

  The American Founders, however, established a political theory of constitutionalism that had denied the autonomy of administration. They did not think it possible to separate administration from politics nor did they think that practical reason could be promulgated as the ground of morality. The inability to reconcile theoretical and practical reason had resulted in the inevitability of politics and factionalism. Consequently, they had affirmed the practical and political necessity of separating the powers of government, so as to allow “ambition to counter ambition.” They were well aware, as Alexander Hamilton noted in Federalist 72, “[that] the administration of government, it its largest sense, comprehends all the operations of the body politic, whether, legislative, executive, or judiciary.” But they were persuaded that the concentration of all of those powers in the same hands “may justly be pronounced the very definition of tyranny” (Madison, Federalist 47). They were convinced that all men are self-interested by
nature. Therefore, all politics, including administration, must be understood in terms of partisanship, or political conflict.

  Unlike Hegel or Woodrow Wilson, the Founders would have denied the possibility of a class of men, civil servants, who would seek only knowledge, not power. Thus, they would have denied that any institution or person could be safely entrusted with all of the powers of government. Nor could any institution of government (Congress or president) delegate its power to an administrative body in which all of those powers are reunited. In undercutting the authority of theoretical reason as well as prudence, the Progressive theorists established technical expertise as decisive in producing and legitimizing social, political, and economic knowledge. In addition, positivism, or the scientific method embodied in the social sciences and law, has created the condition in which the disciplines themselves have become the arbiters of the legitimacy of politics and law.

  Therefore, as the heirs of the legacy of Progressivism, modern scholars cannot in any meaningful way adapt the administrative state to the Constitution, even assuming that to be possible. Rather, given their training as well as their perspective and status within the administrative state, they can do no more than attempt to adapt the Constitution to the administrative state. However, the candid scholars of administrative law are already well aware that the Constitution does not animate our politics. One cannot help wondering why it is that they are not led to conclude that the Constitution is meaningless and obsolete as a political document. They could forthrightly condemn it precisely because it is a defense of limited government in a world incapable of such limitation.11

  The tacit premise of the rational state, and the defense of the administrative state, rests upon the assumption that the power of government cannot be limited. That is so because it is the conditions of society and economy (History) that determine what must be done. It is precisely the amelioration of those conditions that brings about the need of the social sciences. Therefore, it is the purpose of government to solve every political, economic, and social problem. Indeed, the rational state was meant to be the vehicle for the administration of progress. As a result, the very complexity of modern conditions makes it necessary to empower those with knowledge or expertise to rule. It is not surprising, as William J. Novak has observed, that “the very origins of modern social-scientific inquiry in the United States were wholly coincident with and participatory in the construction of the new state-centered socioeconomic policies of the Progressive era.”12

  Indeed, it was not only constitutional politics that was an impediment to radical reform; the rule of law itself came to be seen as an impediment. As Novak noted:

  Overwhelmingly, and with few exceptions, the rule of law is portrayed throughout the synthetic literature as something of an obstruction, a brake, an inertial force, a structural impediment, an ideological hindrance, an exceptionalist constitutional barrier to the development of a modern regulatory and administrative welfare state in the United States. From the first treatises of progressive social science to the newest institutional studies, law, courts, and judges are represented continuously as the great bogeyman of liberal reform—the agents of an exceptionalist and backward-looking American jurisprudential tradition that regularly frustrated modern welfare-state-building efforts.13

  Once the administrative state was established, however, it did not take long for the legal establishment, like the bureaucracy itself, to become the conservative defenders of the liberal or rational state. Although Novak was right about the initial reaction of the Progressives to “law, courts, and judges,” the courts, the judges, and the law itself, with the help of its new intellectual defenders, would soon come to be incorporated as major players within the nexus of policymaking established within the administrative state.14

  In the course of the twentieth century, each of the branches has participated, in one way or the other, in legitimizing the administrative state. The courts, too, by deferring to the legislature in terms of sanctioning the delegation of power to the administration, have found it difficult to exercise their constitutionally mandated judicial judgment in an independent manner. This is particularly so when those cases or controversies arise out of the administrative process. Once the court entered, or was forced to enter, the policymaking process, it was natural that it would defer to the political branches, especially Congress.15

  It is difficult for the court to maintain its independent judicial judgment in individual cases when it must defer to the authority of the legislature, which amounts to privileging those players within the policy arenas established by Congress. In the many cases decided since the Block case, the courts have implicitly taken the side of government against any individual harmed by agency-made rules, depriving them of access to an independent judiciary. The courts are unable to perform their judicial function in a constitutional manner, because they have deferred to the legislature’s delegation of power to the agencies. They have done so without holding the legislature responsible for the use of that power in terms of clarity of language or purpose. In allowing Congress, through such delegation of power, to pass purposely unfinished laws, which are not really laws, they facilitate an arrangement that allows the bureaucracy and the special interests a bargaining arena for establishing the rules that govern society.

  It is hard to imagine that this process, which subordinates the public interest to the demands of organized private interests (by legitimizing and accommodating those interests as equal partners within the administrative realm), can establish anything approximating the rule of law. Moreover, the courts have simply acquiesced in legitimizing the authority of the governing apparatus—legislative, executive, and administrative—within the administrative state. As a consequence, the political standard of Congress is no longer one of public lawmaking on behalf of a national or public good, but the accommodation of all of those private interests capable of lobbying Washington. It appears that the satisfaction of every interest replaces the necessity of establishing the rule of law as essential to a common good. At the same time, it is not clear that every citizen can have his day in court.

  All that Congress seems to demand is the ability to intervene in this policy nexus for the purpose of satisfying its own special interests as individual members and on behalf of the national political, economic, and social elites. In doing so, the constitutional and institutional power of the legislature is undermined and the practical operation of separation of powers is endangered. When Congress delegated its power in broad grants of authority to the bureaucracy, it could not but empower the president and the executive branch officials, because it must allow nearly absolute discretion in the promulgation and enforcement of most rules and regulations. The political branches and the national political parties, organized around the private interests of national elites, have created a centralized administrative structure that encompasses every national political, economic, social, religious, educational, scientific, and entertainment-media elite. The organized interests are all well served by the federal government. The electorate, however, has access to the national government only through the parties. And, the political parties no longer serve as a link between people and the government.

  Consequently, once administrative centralization occurred, the connection between the parties, the electorate, and government was severed, and the electorate’s access to government was severely constrained. Because bureaucratic patronage has replaced party patronage, money flows to the states and localities from the center. However, nationally organized interests, and their lobbyists, co-opt and organize those political, economic, and social interests at the state and local level by bringing all political bargaining to the center. The member of Congress’s political fate is no longer decided by his own electoral constituency. As a result, officeholders have need of their constituents only when it is necessary to get their votes at elections. Because much of their money is provided by the centrally organized interests at the national, state, and local levels—a
nd the policies of the administrative state have provided subsidies for large numbers of their constituents—incumbents have a tremendous advantage. But that advantage depends upon the maintenance of the status quo—in other words, continued support and defense of the administrative state. This kind of administrative centralization has also empowered the leadership of both houses at the expense of the members, because the organized interests now deal directly with the leadership and their staffs and the executive bureaucracy. It is the leadership, therefore, that determines the kind of resources given or withheld from the membership. Under these circumstances, the notion of a common good cannot arise within the legislature.16

  Moreover, the Supreme Court is protected in its role as the sole interpreter of the Constitution by the ongoing necessity of legitimizing the policies of the administrative state through constitutional construction. Only in that way is it possible to operate the administrative state on behalf of organized interests while at the same time placating a population that still thinks of its rights in terms of the Constitution. The reality of contemporary politics makes it clear that the practical operation of the separation of powers is no longer animated by the principle or spirit of constitutionalism, not in form or in substance. Contemporary politics, in all of the institutions of government, is organized and energized by the necessities imposed by the primacy of administration and is animated by its theory. It may be the case that modern government requires a centralized administrative state, although that is not self-evident. But, if that is the case, then the operation of the separation of powers, understood in terms of constitutional government, is no longer possible in a meaningful way.