In this Future of Liberty discussion, Governor Mitch Daniels interviews Philip Hamburger, legal scholar and founder of the New Civil Liberties Alliance, about the administrative state. The two agree that federal agencies have committed at least two sets of sins. First, they have unduly and unnecessarily violated the rights of citizens, and second they have done so on shadowy constitutional grounds.
Professor Hamburger attributes the rise of the administrative state to two intertwined factors. First, Congress has a strong political incentive to over delegate—especially when it comes to politically risky details—and in doing so it unconstitutionally relinquishes legislative authority to bureaucrats. And second is a Progressive ideology that worships centralized, uniform administration and a larger role for government. By the turn of the twentieth century, these two factors would conspire to set the stage for the rise of the administrative state.
A ray of hope has recently broken through. The Supreme Court’s reversal of the Chevron doctrine has drawn intense attention to the issue of judicial deference. What will be the actual effects of closing the Chevron deference door? Only experience will tell. If economic history provides a clue, it’s that human systems tend to adapt whenever institutional rules get rearranged. Bureaucrats are no exception. So, closing Chevron deference might not alter the balance of power—it will depend on how agencies adapt to new ways to do things. (See Lynne Kiesling’s take on the new incentives post Chevron.)
Nor is the classical liberal grass necessarily much greener before the courts, which also have a history of trampling on economic rights. Most notoriously, 1938’s US v. Carolene Products relegated economic rights to the lowest priority for judicial review. Under 2005’s Kelo v. New London, courts defer to local majorities for the proper scope of eminent domain. And in 1992’s Lucas v. South Carolia Coastal Council, regulation does not count as a taking unless it destroys virtually the entire value of a property. The list goes on (see The Dirty Dozen by Bob Levy and Chip Mellor). Reining in judicial deference might move us out of the constitutional shadows, but there seems little to guarantee it will improve rights protection.
How did we get here? Hamburger attributes the rise of the administrative state to an American form of classism, whereby Progressive elites foist their good intentions and faith in government on everyone else via the state’s monopoly on force. This certainly jibes with a disturbing 2023 Rasmussen poll showing stark contrasts between elite and mass opinion on economic, social, and political issues.
Yet, we would be remiss to neglect the forces of populism. A running theme in the work of James Buchanan is that Leviathan is us, and Big Government is ultimately the result of self-government.
It is on Main Street and the kitchen table, not just on K Street and the administrative law bench, where the buck stops.
Edward J. Lopez, is Professor of Economics at Western Carolina University, Executive Director of the Public Choice Society, and author of numerous articles and books including Madmen, Intellectuals, and Academic Scribblers.
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