John Marini is among the most interesting critics of institutionalized bureaucracy, which has recently become the focus of much attention. But where books like Philip Hamburger’s Is Administrative Law Unlawful? and Michael Greve’s The Upside-Down Constitution have given us helpful insights into the practical and legal dysfunction of regulatory agencies, Marini’s Unmasking the Administrative State reaches deeper, to its philosophical roots, and reveals its profound inconsistency with the principles of the Constitution and the political system it contemplates.
The story begins with the Progressive Era’s radical transformation—or attempted transformation—of American government from one rooted in the laws of nature and the legal protections for liberty such laws prescribe, into a purportedly more rational and scientific machine of administration, aimed at perfecting the social, economic, and political condition of humanity. As Marini explains, this transformation was based on the thought of G.W.F. Hegel, whose acolytes staffed the German graduate schools where the pioneer American Progressives got their academic training. The Hegelians based their political thought not on nature but on History, and their principle of political order was not deliberation among naturally free people about the common good; it was the manifestation of the Will in the State. The collective Will, that is; in this conception, the citizen’s “real” self consists of his role in the group, and his rights are privileges doled out by the authorities. Marini quotes one such Progressive expressing this view concisely in 1918: “Man can have no rights apart from society or independent of society or against society.” Having rejected the concept of natural rights, Progressives aimed to shape human destinies—give people, indeed, their very personalities—by redistributing rights and duties. This process, which transformed government from the servant to the master of the people, would be overseen by scientific experts in management, working for unelected bureaucracies where they would be insulated from the irrationalities of politics.
In Marini’s view, the Administrative State is a legacy of this radical change to the American political system—a change so drastic that Congress today functions primarily as a watchdog, overseeing the bureaucratic perpetual motion machine. Courts contribute by conceding the legal validity of these agencies in exchange for the opportunity to occasionally tinker with the details of how they operate. But the vision of Congress writing bills, deliberating about their moral and practical consequences, and enacting them, has been replaced by a system in which agencies are commissioned to do good generally—and are left free to work out the messy details.
This is a compelling argument, and Marini puts it compellingly. It’s also a big-picture argument, meaning it does not address the more specific questions raised by some defenders of the administrative state today. Adrian Vermuele, for example, has argued that writers such as Hamburger miss their mark because the essential characteristic at the heart of the administrative state—the discretion on the part of the executive when enforcing statutes—is inescapable in all legal systems. “The power to fill in the details is an indispensable element of what ‘executive’ power means,” he writes. “To execute a law inevitably entails giving it additional specification, in the course of applying it to real problems and cases.”
Defenders of administrative agencies might challenge Marini to indicate the precise point at which the wiggle-room found in all statutes becomes the seemingly limitless discretion exercised by a bureaucratic mechanism that is only halfheartedly overseen by Congress. If, as Marini writes, we have gone from a society in which political actors could “articulate a conception of a common good that would enable [them] to establish a governing consensus on behalf of a national public purpose,” to one in which this is impossible, when exactly was that bridge crossed?
Probably the best answer is that this is a matter of degree. In The Morality of Law, Lon Fuller argued that lawfulness itself lies on a spectrum, and that as its essential qualities are whittled away—for instance, as law becomes less intelligible, or less regularly enforced—society becomes less and less fairly describable as “lawful.” Vermuele may be right that some degree of administrative discretion is inherent in all law, but today’s statutes are frequently so broadly worded that they reveal no serious effort by Congress to cabin such discretion. Take, for example, 42 U.S.C. §1302, which gives the Secretaries of Treasury, Labor, and Health and Human Services power to “make and publish such rules and regulation…as may be necessary to the efficient administration of the functions with which each is charged.” That’s not a carefully crafted statute with a degree of inevitable ambiguity. It’s a roving commission.
This answer would also resolve the reader’s doubts with regard to some of Marini’s occasionally exaggerated pronouncements. When he says, for example, that bureaucracies have “replaced political rule with bureaucratic patronage and interest-group privilege,” one wonders whether there was no patronage and privilege in the era before bureaucracies were formalized. For all their faults, bureaucracies are subjected to meaningful legal constraints that did not exist in the smoke-filled back rooms of the Gilded Age, and which check such patronage to some degree. And when he argues that Progressive political theory has made it impossible for political parties “to articulate a conception of a common good that could establish a governing consensus on behalf of the electorate or provide a common ground of agreement between the branches of government,” one wonders whether it was any easier to find a common ground of agreement before the twentieth century. Beginning with America’s first major constitutional dispute—Jefferson and Hamilton’s quarrel over the National Bank—Americans have been having trouble in this regard. Democracy is a dynamic search for elusive common grounds. If anything, the institutionalized bureaucracy has proven a stabilizing force, ensuring a greater likelihood of political consensus. That’s probably not a good thing, given that the consensus is often unconstitutional, irresponsible, and downright irrational—but as a matter of “common ground,” its legitimacy is rarely questioned. In fact, that was one of the many motives for its creation: the history of the administrative state can’t be understood in isolation from the rise of the Civil Service, which was seen in part as a cure for the patronage, privilege, and instability that preceded it. Marini, however, doesn’t mention this.
Finally, when Marini writes that the administrative state “was established on the assumption of its theoretical and practical superiority over every earlier form of government,” one detects a hint of the genetic fallacy. It may be true that leading Progressives thought the Constitution obsolete, and hoped “that politics would give way to administration and expertise could replace partisanship”—in fact, it certainly was true of Woodrow Wilson and Franklin Roosevelt. But the understanding of the administrative state has changed today, at least among many of its advocates. One rarely encounters any who view their task this way. Most take the more modest view that they are working to implement statutes, and that they are answerable to the Constitution.
Are they nonetheless laboring in Hegel’s vineyard? Perhaps, but they also exist in the aftermath of such devastating critics as the Public Choice and Chicago School economists, and particularly of the Carter and Reagan eras. Reagan, wrote Peter Drucker, did not reduce the size of the welfare state (he trebled it) but he did destroy its legitimacy, and that legitimacy has not been revived. Woodrow Wilson said “the logical conclusions deducible from democratic principles” were “that no line can be drawn between private and public affairs which the State may not cross at will,” and that “the community” has an “absolute right…supreme over men as individuals.” A century later, Bill Clinton said that “the era of big government is over.” Whatever his sincerity, the shift reflected in the latter comment is immense.
Marini suggests as much in his repeated acknowledgment that in the eyes of Americans, the Constitution remains the truly legitimate foundation of government, and that the Progressive effort to undo that has largely failed. But he skips over the changes in how bureaucracy is perceived today, writing as if its Hegelian essence were undiluted. And when he says that “contemporary politics is animated by a modern theory of the state that denies the power of government can be limited,” he disregards the massive amount of time and energy spent on “rights talk” today. The Great Society may have boosted the institutionalized bureaucracy, but it also witnessed a new consciousness of the dangers of bureaucracy and of the need for moral constraints on the state. Segregation, for instance, was a Progressive idea, meant as a “rational” solution to racial conflict. The Civil Rights Movement destroyed its claims to legitimacy in the name of natural justice.
Finally, there’s the problem of solutions. What would it take to rescue constitutional government today? Unfortunately, although Marini acknowledges that “the seriousness of the need [for reform] does not mean that the need can be satisfied, perhaps even by a Lincoln, let alone a Trump,” he and his editor, Ken Masugi, persistently engage in a form of psychological projection. They read into the Presidency of Donald Trump a vision of a principled opponent of the administrative state that simply isn’t there. If anything, Marini succeeds in showing how challenging real reform would be—that it would require a leader well-versed in the nature and foundation of bureaucracy, or at least someone capable of hiring deputies who have that knowledge. The last person on earth who fits that bill is Donald Trump, who is, if anything, an enthusiast of patronage and favoritism, and who cannot articulate any common good, or, really, anything at all. The Trump administration has already done badly in challenging the administrative state—winning only about 5 percent of relevant lawsuits as opposed to the 69 percent of its predecessors. Marini mentions none of this.
Instead, he praises the President in terms that are often simply laughable, as when he writes that “it is almost impossible to assess factual reality as it relates to Trump” (indeed—no doubt because the man lies all the time) or when he writes of “the destruction of the moral authority of civil society” which has “marginalized the family and the church”—topics about which Donald Trump could not possibly care less. Conservatives, writes Marini, “have rejected Trump on the ground that he is not a conservative. But what is conservatism?” Like Pontius Pilate, who asked the same about truth, Marini doesn’t stay for an answer.
The disease Marini, Hamburger, Greve, and others, so effectively diagnose is a real one, and perilous, because it’s powerful, sophisticated, and intricate. Only a statesman could hope to begin to remedy it. As Hamilton and other founders knew, the historical pattern has usually been the opposite: when citizens are impassioned about threats to the nation they hold dear, that passion attracts—as flames do moths—“the ambitious, the avaricious, the desperate,” and “men who possess [the people’s] confidence more than they deserve it.” The founders thus understood that, in Marini’s words, “wisdom cannot be separated from moderation.” But instead of the statesman’s wise moderation, Trump’s acolytes have encouraged Americans to embrace the panic and hate of “The Flight 93 Election.” The great tragedy of the Trump era is that at a time when only a precision instrument can perform the necessary surgery on the administrative state, Americans have instead been given an illiterate performance artist who enjoys blowing things up. Blowing things up entertains the crowd, but in the end it’s counterproductive, because it squanders a vital opportunity and concedes the moral and intellectual high ground so vital to fixing these problems.
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