in A debate about the future of this freedomGov. Mitch Daniels interviewed Philip Hamburger, a legal scholar and founder of the New Civil Liberties Union, about the administrative state. The two men agree that federal agencies have committed at least two crimes: First, they have unfairly and unnecessarily violated citizens’ rights, and second, they have done so on vague constitutional grounds.
Hamburger attributes the rise of the administrative state to two intertwined factors. First, Congress had a strong political incentive to delegate too much power, especially on politically risky details, and in so doing unconstitutionally ceded lawmaking power to bureaucrats. Second, a progressive ideology that fetishized a centralized, unified administration and a larger role for government. These two factors conspired to set the stage for the rise of the administrative state in the 20th century.
Recently, a ray of hope has appeared. The Supreme Court’s overturning of the Chevron principle has focused intense attention on the issue of judicial deference. What would be the practical impact of closing the door on Chevron deference? Only experience will tell. If economic history is any guide, it is that human systems tend to adapt whenever institutional rules are reorganized. Bureaucracies are no exception. Closing Chevron deference may therefore not change the balance of power. It will depend on how institutions adapt to the new way of doing things. (See Lynn Kiesling’s observation.) New incentives after Chevron.
The courts have a history of trampling on economic rights, and the grass is not always greener on the sidelines of classical liberalism. Most notoriously, in the 1938 United States v. Carolyn Products Economic rights were demoted to the top of judicial review in 2005. Kero v. New LondonThe courts have left it to local majorities to decide the proper scope of eminent domain. Lucas v. South Carolina Coastal CouncilA restriction cannot be considered an expropriation unless it substantially destroys the entire value of the property. The list goes on. The Dirty Dozen (By Bob Levy and Chip Mellor) Curbing judicial deference might help us move out of the Constitution’s shadow, but there seems little guarantee that rights protections would improve.
How did we get to this point? Hamburger attributes the rise of the administrative state to American-style classism, where progressive elites impose their benevolence and faith in government on everyone else through their monopoly on state power. This is certainly unsettling. 2023 Rasmussen Poll It shows a stark contrast between elite and popular views on economic, social and political issues.
But it would be a mistake to ignore the power of populism. James Buchanan Leviathan is us, and big government is ultimately the result of self-government.
“When we speak of controlling Leviathan, we should be referring to controlling self-government, not some measure that is manipulated by the decisions of people other than our own. If this simple truth were widely recognized, miracles might happen. If people would stop talking about and looking for villains, and start looking instead at the institutions run by ordinary people, a broad avenue for real social reform might open up.”The limits of freedomp.188)
Accountability doesn’t just lie on K Street or in administrative law courts, but on Main Street and at home tables.
Edward J. Lopezis a professor of economics at Western Carolina University, executive director of the Public Choice Institute, and author of numerous articles and books. Madmen, intellectuals, and academic writers.
