Free Minds & Free Markets

'Administrative State Is THE Leading Threat to Civil Liberties of Our Era.'

Columbia's Philip Hamburger says this "monarchical" system of government grew in power just as blacks and women saw an expansion of their voting rights.

"The administrative state is the leading threat to civil liberties of our era," says Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the recent books, Is Administrative Law Unlawful? (2015) and The Administrative Threat (2017). "We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts, but we have within that an administrative state, a state that acts really by mere command and not through law." Hamburger argues that by reducing the role of elected officials to set policy, the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power.

Before he left the Trump administration, former White House Chief Strategist Steve Bannon famously vowed to "deconstruct" the administrative state—the collection of bureaucrats, agencies, and unelected rule-making bodies who decrees and diktats govern more and more of our lives.

And many of the president's picks at places such as the FCC, the FDA, the EPA, and the Department of Education seem to be doing just that: cutting regulations and policies that come not directly from Congress but from administrators who decide, say, that the FCC has the ability to regulate the internet as a public utility, and that so-called net neutrality is a good idea. Trump's appointee to the Supreme Court, Neil Gorsuch, is widely understood to be a critic of the administrative and some of best-known ruling challenged the validity of rules laid out by federal bureaucracies.

Reason's Nick Gillespie sat down with Hamburger to discuss why the administrative state is unconstitutional, and what, if anything, can be done reduce its power.

Edited by Ian Keyser. Introduction produced by Todd Krainin. Cameras by Jim Epstein and Andrew Heaton.

Music "Integration Blues" by Javolenus

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This is a rush transcript. Check all quotes against the audio for accuracy.

Nick Gillespie: Let's start by defining administrative law in the administrative state. What does it do and where does it come from?

Philip Hamburger: Administrative power can be administered many different ways. Some people use the phrase to describe all government power in executive, and that's rather too broad. It's indiscriminate. I use the phrase to describe extra-legal rulemaking and adjudication. Exercise of power to bind Americans, to control Americans, not through the pathways set out by the Constitution and acts of Congress and acts of the court, but through other edicts, typically from agencies.

Gillespie: In your recent book, Is Administrative Law Unlawful, you liken the practice of administrative law to off-road driving, and you write, 'The problem examined here is thus not where the government is heading, but how it drives. To leave the roads laid out by the Constitution can be exhilarating, at least for those in the driver's seat. All the same, it is unlawful and dangerous.' So, administrative power, it's not that Congress doesn't make a law and then it gets implemented. That's not administrative power. Congress passes a law that says, 'we want clean air.' And then the EPA says, 'okay, in order to implement that law, we're coming up with all of these different aspects.'

Hamburger: Right. The danger is what the agencies do. Congress certainly has power to enact all sorts of laws regulating us, and so this is not an argument against regulation. We can debate the merits of particular regulations. But rather, it's an argument against having the executive or independent agencies, or more or less, a part of executive agencies, make rules that bind us in the same manner as laws enacted by Congress.

Gillespie: Right. But, they're not subject to the same kind of public discussion or vote. So, is the administrative state bad because it ends the separation of powers? Because the executive branch gets to make more and more decisions? Or, maybe and/or, it's bad because the rules can't really be ... you know, they're implemented in a non-democratic or non-representative way.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Diane Reynolds (Paul.)||

    But without the administrative state, we'd be stuck with Democracy.

  • RightWingA**hole||

    No, we would be stuck with a "republic".

  • Fist of Etiquette||

    Wait a minute. Are we now praising Trump and Bannon for something? Did I stumble on the Stormfront website by mistake?

  • SIV||

    I was thinking more the Daily Stormer. Did weev hack treason ?

  • Uncle Jay||

    RE: 'Administrative State is THE Leading Threat to Civil Liberties of Our Era.':

    The "Administrative State."
    TRANSLATION: The new improved socialist slave state.

  • Longtobefree||

    'Administrative State is THE Leading Threat to Civil Liberties of Our Era.': New at Reason

    Well, it is only new at Reason.
    The rest of us have known this for decades.

  • Jerryskids||

    The latest shit is this lawsuit over Trump rescinding Obama's EPA clean power diktat - the EPA claims this is their mandate and their hands are tied on this issue, with no explanation as to why this has been their mandate for 40 years and they haven't done anything but now suddenly it's going to take an act of Congress to stop it from going into effect? The EPA was established to clean up the environment and they've done a wonderful job, they can all go home now. But no, the agency and its budget are bigger than ever - which means either they're doing more than they were intended to do or they're doing such a shitty job that the environment is in worse shape now than it was then. Which is it? They've all got their own sources of funding through civil suits and settlements and they've all got their own administrative hearings officers and they've all got their own armed enforcement SWAT teams - they're all three branches of government rolled into one and they're a law unto themselves. It's long past time to shut this unelected, unaccountable, unconstitutional shitshow down.

  • Longtobefree||

    If liberals/progressives truly believe in the theory of evolution, why do we need the EPA? It just gets in the way of proper evolving.

  • Myshkin78||

    "...the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power."

    "disempowers all voters" would be shorter and more accurate. May not play as well at Columbia, though.

  • JunkScienceIsJunk||

    "I was in complete agreement with Dr. Hamburger about the negative consequences of the administrative state, until he mentioned it impacted minorities and women. Now I'm thinking the administrative state might not be so bad."
    - Every conservative on this site

  • Longtobefree||

    Well, maybe all but one.
    Except the term "conservative" no longer has meaning. Just like "liberal".

  • Myshkin78||

    That's certainly true. However, the ambivalence on principles that JunkScience mentions sounds more like Trump's populists than classic conservatives.

  • SIV||

    classic conservatives

    "Cucks" for short.

  • Myshkin78||

    Brilliant rebuttal

  • SIV||

    classic conservatives

    "Cucks" for short.

  • Sevo||

    Fuck off, asshole.

  • Azathoth!!||

    Isn't there a fire somewhere you can fuck off and die in?

  • JuanQPublic||

    We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts...

    Actually, not even that anymore, regarding a lot of criminal law (outside of white collar criminal law, of course). Mandatory minimums have effectively relieved judges from their proper duties and let legislators send down predetermined sentencing, bypassing courts (and actual justice) altogether.

    And then, moving on to the administrative state, they aren't even elected of course. We're entering a strange hybrid of mob rule and unaccountable projection of government.

  • Longtobefree||

    You evidently confuse a court of law with a hall of justice.

  • DenverJ||

    The guy's name is "Hamburger".

  • Myshkin78||

    He really needs to collaborate with Professor DeFries in the Ecology department.

  • Conchfritters||

    How come you never see a guy with the last name: Cheeseburger?

  • Robert||

    But we had a jurist named Frankfurter.

    Margaret Fries died, rather young some yrs. ago, didn't she? Or did I misremember?

  • Dan S.||

    Like the DA in the Perry Mason books, but more blatant.

  • Procyon Rotor||

    If we're being honest, the laws passed by the legislature are no great friends to liberty either.

  • ||

    The administrative state is nothing more than the continuation of the "Managerial state which has been the status quo sin the 19th century, especially sin the 1870s or so but predates that date from the age of Alexander Hamilton and most prominently showed itself with DeWitt Clinton and the building of the Erie Canal. Even though Clinton was a Democratic-Republican he differed sharply from Thomas Jefferson in believing that that the government should play an active role in major public development and improvement. Clinton was also a major force behind the The Commissioners' Plan of 1811 which imposed the current layout of streets on Manhattan island, which essentially laid out a rectangular system of streets without regard to topography or property ownership on the entire island. Under this plan hills were knocked down valleys and streams were filled as were shore lines etc.

    There was simply nothing on earth that democratic planning could not overcome for the benefit of "the people."

    The idea of Managerial state prevails as the general political ethos to the present day. Today voters do not choose candidates over principles or ideologies but over which candidate will "run the country better" (ie, who will "manage" things the best).

  • ||

    The most recent iteration of the Managerial state was the New Deal and its further variations, Truman's "Fair Deal", JFK's "New Frontier" and LBJ's "Great Society"*. The first challenge to the Managerial state was mounted by Barry Goldwater who lost in a land slide to LBJ. The next challenge was by Ronald Reagan who essentially betrayed everything by keeping everything (most especially Social Social Security) and ending none of it.

    *Most of which ended up being signed into law by "conservative" Richard Nixon.

  • ||

    Where "sin" appears read it as "since".

  • seahorsedan||

    I am both white and a nationalist, I am not ashamed of my race nor my country. Ethnocentric maybe, racist never. I confess to taking some pride that nearly every preferential benefit in society today, college scholarships, college admissions, job hiring, job advancement, social credibility, legal immunity and so on is granted to non-White, and female people and question why there is still no more volatile weapon than race baiting better suited for the MSM Globalists divide and conquer strategy to sellout our sovereignty.
    Believe this you won't be better off under Globalism. Globalization is a process of interaction and integration among the people, companies, and governments of different nations, a process driven by international agreements and regulation i.e. "Dollar Diplomacy". Free speech and the free press often called the forth estate have conscripted the surge in grassroots progressive activism to become the fifth column to lead activists to dismantle American sovereignty. As the BLM and MSM proclaim: "White silence is violence."
    Who knows. Someday when asked "what did you do in the sovereignty war Gramps" ? I'll say "gave 'em he!! on the comment boards while they lasted." Keep it civil.

  • JunkScienceIsJunk||

    You make a lot of assertions, based largely on fear and not on evidence. It's difficult to craft a rebuttal.

  • Buy Bitcoin||


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