The Administrative Threat


Philip Hamburger discussed his new Encounter Intelligence book, The Administrative Threat, with Encounter’s Ben Weingarten. What follows is a full transcript of their discussion, slightly modified for clarity. You can also listen to their interview in its entirety here.


Ben Weingarten: One of the interesting arguments that you make in The Administrative Threat early on, that I think is underappreciated, is the idea that in evaluating the administrative state on the basis of economic efficiency or how technocratically strong it is, we lose sight of the moral and other deep flaws within the administrative state that’s been built over the last century. Speak a little bit to that argument.

Philip Hamburger: So often, certainly, since I was young, I’ve heard arguments that administrative power threatens the economy, it threatens economic freedom, it threatens corporations and so forth. I’m not an economist. All of this may indeed be true. But it strikes me as a lawyer that there’s a much broader and more important argument against administrative power, one that is true for all of us, regardless of our views on economics, and regardless of whether we care or not about corporations and the economy.

The reality is that administrative power is not our system of government. The United States Constitution places the legislative power in Congress, which we elect, and I thought that’s what equal voting rights were all about — that we elect our lawmakers. That’s why we consent to legislation. And it turns out that there’s this alternative mode of government that does not really bind us through law but through mere command, as if it were a military command, without being adopted by our elected lawmakers.

So there’s something very problematic with that, and it becomes all the more worrisome when one realizes, as I recently have, that this is a threat to civil liberties; that in fact, administrative power eviscerates most of the procedural rights in the Constitution, and many other freedoms established by the Constitution. It’s, I think, the greatest civil liberty threat of our time.

Ben Weingarten: The administrative state is such an integral part of our federal government, and really pervades all levels of government. And you argue in this book that the entire structure is itself unconstitutional. Describe first, because it’s always helpful to define terms, what the administrative state is, and then explain why this vast system is unconstitutional.

Philip Hamburger: Well, administrative power is often defined by its defenders in terms of law; they call it administrative law, as if it really was a sort of law. But it isn’t law. Our Constitution creates two pathways for binding us for imposing legal obligation: One is through acts of Congress, and the other through acts of the court. And in contrast, the acts of the executive are not binding. That’s the mere force of government, but it doesn’t create some obligation running into the future.

And the administrative power is essentially an evasion of the Constitution’s paths of government. It evades the legislative power provisions of agency rules, and it evades the court’s judicial power by directly using agencies to adjudicate. Whereas the government, as established by the Constitution, has three parts.

The administrative power is really exercised entirely by single agencies. So, for example, be it the SEC or the FCC and so forth down the alphabet, they will create legal rules that they pretend are binding, they will prosecute as if they’re an executive, and then they will adjudicate, as if they’re the judges. And in that sense, it’s a sort of extra-legal power. It’s not power exercised through law but through other means, through mere command.

Ben Weingarten: So essentially, the administrative state plays judge, jury and executioner, and legislator, all at the same time. So there are separation of powers issues, and there are all sorts of other due process issues, procedural issues, which we’ll get to. You likened the administrative state to the system of King James in the 17th century. Explain that analogy.

Philip Hamburger: There’s always been a danger that rulers, people in power, have wanted avenues around the limited modes they have for controlling other people. King James under English law could bind his subjects by persuading parliament to adopt statutes just as presidents can persuade Congress to adopt statutes, and he could bind them also by going to the law courts and having judge and jury find someone guilty of violating a particular law. But he wasn’t content with this. He wanted more. He wanted to issue binding rules, as if they were laws just out of his own will without persuading parliament. He wanted to evade parliament. And he wanted to bind people in particular cases through his own little prerogative courts, what we call administrative courts, in other words without going to real judges and real juries. And in that sense, all the pathways of governance that constitute law and courts can be just put aside and evaded.

And strikingly, contemporary presidents and executive administrations did the same thing. Our contemporary executive branch largely exercises power, not in its constitutional mode simply by carrying out the authority given to it by law and through law and through the courts, but by directly making law, adjudicating it, and carrying it out itself as if it didn’t really need Congress or the courts.

So there’s a direct parallel between the two, and in fact it’s not a coincidence. In fact, our administrative power is drawn from Germany. And Germany had inherited the same sort of power exercised by James I, and American progressives late 19th century looked over at what Otto von Bismarck was doing and thought they wanted a similar sort of administrative structure.

Ben Weingarten: And you bring up the progressive movement, and the whole structure of the administrative state stems from that movement. There is the idea that we could use science and enlightened technocrats to govern the people better than they could, in this sort of extra-constitutional system, which you describe as unconstitutional. Is it fair to say then that administrative power is in and of itself regressive ironically, even though it was a progressive invention?

Philip Hamburger: Precisely. Astonishingly, it reverts back to the past. This is a form of government that really developed in the 15th, 16th and 17th centuries, and it was introduced in America at the time of horses and buggies. And that’s said to be the up-to-date mode of governing us today, so up-to-date that we should abandon constitutional modes of governments. This is very, very odd.

The reasons the progressives looked to German absolutism or administrative power is actually rather worrisome. The progressives were very disturbed by the results of broadening suffrage. Many of them supported equalizing voting rights, but at the same time they were worried that the results was a democracy that was not entirely tasteful or within their control.

Woodrow Wilson talks disparagingly, and this is a quotation, he talks disparagingly about the difficulty that all reformers have at persuading a populace consisting of “Germans,” “Irishmen,” and “Negroes;” he expresses concern that their brains have been “warmed” under the sun of different climates around the world; and he argues that it’s really much easier to persuade Americans of the “older stock.”

In other words, he didn’t like the rough and tumble of diverse American politics. And the progressive solution was to withdraw legislative power out of the legislature, and put into the hands of so-called experts.

Put another way, in the past century-and-a-half, we’ve seen remarkable expansion of voting rights. Equal voting rights seems to us central. But along with this, there has been a withdrawal of legislative power out of the elected legislature. So this is really quite shocking. It’s as if the knowledge class, the progressives and their allies give with one hand, and take away with the other.

Ben Weingarten: One of the ways the regressive nature of the administrative state manifests itself is in the legal system, whereby the agencies themselves have courts that adjudicate on matters concerning the agency and in some cases, individuals, like for example, the EPA claiming what one can or cannot do on their own land based upon their interpretation of wetlands. It strikes me that this is a subversion of our fundamental jurisprudential principles. Speak a little bit to the administrative state legal system.

Philip Hamburger: The legal system of the administrative state is the exact opposite of that which we tell ourselves we have under the Constitution. In the United States, as established by the Constitution, we consent to our own laws by electing the lawmakers.

In the administrative state that we’ve created within our government, it’s bureaucrats hidden away in agencies that make the rules that bind us.

In the legal system of the United States, as established by the Constitution, we have judges who are chosen for their independence, who are fully protected in their positions, and they and juries decide our cases. And even if you settle a case, you at least have the advantage of insisting on jury and improving your settlement chances.

In the administrative state, by contrast, the prosecutor is the agency that made the rule, and the judge is an employee of the agency, an administrative law judge, or a mere so-called administrative judge, who has no protection independence. And they decide the cases without juries, without real due process, and in fact, they’re not really independent. Even those who are said to be independent — the administrative law judges — in fact, are not allowed to hold against the government on the unconstitutionality of the provisions, the rules that they’re applying.

So in fact, there’s profound judicial bias in the administrative judicial system. It’s hard to think of a greater violation of due process, and jury rights and other rights protected by the Bill of Rights.

Ben Weingarten: So the administrative state has its own courts, and I’ll quote you from The Administrative Threat. You write: “An agency can thus both issue a binding rule and interpret it, and at each stage it is making law.” Well, only Congress should be able to make laws, so how did we end up in a place where bureaucracies are the ones making law, and not our elected representatives?

Philip Hamburger: Well, part of the answer is that I think law is in class divisions. Increasingly, there has been an educated class in this country that think they know better than the rest of the people what the law should be, and they think that their own judgments in particular cases are also better than those of juries. And so, this was a systematic attempt beginning in late 19th century to shift legislative and judicial power out of Congress and out of the courts into agencies where this power would be exercised by the “right sort of people.”

And at first, this was largely accepted because this was just a minor exception to a typical adherence to the Constitution’s paths of power. But by now, of course, the primary interaction between the government and Americans is through administrative power; what was an exception has become the norm. And as a result, our constitutional institutions are withering away.

So we are at a crucial moment now. We either can reclaim our civil liberties, or we can see them just disappear.

Ben Weingarten: Yeah. And you make the argument that essentially, the administrative state is the greatest violator of civil liberties of this era. Obviously, our friends on the Left would probably take issue with that characterization. Make your best argument to those who likely support what the administrative state does, at least conceptually, for why they should be concerned about the administrative state as a violator of civil liberties.

Philip Hamburger: So to start with, I don’t think this is a political matter. This is a civil liberties problem that should be of concern to all Americans. And I’ve actually been impressed with the degree to which people on Left and Right, once they get over their initial assumptions, can actually agree on these issues.

So for example, the procedural rights we enjoy in the Bill of Rights, ranging from jury rights to due process, these are essential to all of us without political division. And it’s quite striking that the administrative state puts these rights aside. You don’t get a jury in an agency, nor really do you get due process. You get the merest illusion of it: At best, a hearing, and often, a hearing without being heard, and often not a hearing. And it’s said to be due process? Not really.

This is all the more serious because even when you get a court, even after you appeal from an administrative agency, you still will not get your rights. Judges on appeal from agencies don’t give you a jury. Instead, there’s simply judicial deference to the administrative record. And there’s also judicial deference to the interpretations put forward by the agencies. And the result of them, in both fact and law, you don’t get your rights.

And making it worse, of course, where the government is a party to a case the deference of the judges to the government’s position on facts and law is actually biased in favor of the most powerful party. It’s systematic judicial bias and violation of due process.

And in this sense, not only do we not get our civil liberties in agencies, but the courts themselves have been corrupted. The courts have allowed themselves to get into the position in which they are denying basic civil liberties, indeed much of the Bill of Rights, as much of the Bill of Rights’ corpus consists of procedural rights.

May I add one other point here on the civil liberties issue? Both Left and Right are committed to equal voting rights. There are disputes on the margins about what that means. But blessedly, we are a country that has overcome prejudice such that now, almost all Americans can vote comfortably and are not impeded. And that’s a result of a long, long and important struggle.

But it’s therefore all the more astonishing that at the same time, we’ve taken legislative power out of the hands of the legislature, and scurried it away into the hands of bureaucrats. And for most of the history, those bureaucrats have been white men, and certainly, and more significantly, they’re members of the knowledge class. They’re not part of hoi polloi. They’re not part of the masses. And this is very disturbing. It is, in fact, the most serious dilution of voting rights in our history.

So these are some of the reasons why there’s a genuine civil liberties issue here, perhaps the greatest threat to civil liberties of our era.

Ben Weingarten: One of the other liberties that the administrative state threatens is that of freedom of speech. Tell our audience about the nature and extent to which government controls the content and the volume as well of speech by way of the administrative state.

Philip Hamburger: So, a curious phenomenon can be observed in the last 20, 30 years. Increasingly, we see agencies either engaging in the prior licensing of speech in the press, or persuading others to act on their behalf in licensing speech in the press.

This can be seen in universities through so-called institutional review boards. It can be seen at the FCC, the Federal Communications Commission; the Federal Election Commission, which uses advisory opinions for purposes of licensing; and at the IRS, which licenses churches, and these licenses cover their prospective speech on the basis of what they’ve already said.

All this is worrisome because the central problem addressed by the freedom of speech and press in the First Amendment was prior licensing of speech. Now that’s not the full extent of freedom of speech, but it is the core, the historic core, and that has now been whittled away. And that’s not entirely coincidence. Licensing was a means of wholesale control.

Ordinary prosecution such as under the Alien Sedition Acts were bad enough. But that’s retail control, it’s retail suppression because the government has to identify a particular person and make a case in front of a judge and jury about their particular words. In contrast, prior licensing allows wholesale suppression because one needs prior permission from the government to speak, and the government actually can thereby avoid the burdens of proof and persuasion that you would have in a prosecution.

So, by evading procedural rights, the administrative state has become a remarkably effective mechanism for whittling away, indeed slicing right through our rights of speech and the press.

Ben Weingarten: In the wake of the nomination of Justice Gorsuch to the Supreme Court, one of the issues relating to the administrative state that came up is the case of Chevron and the notion of “Chevron deference.” What is the significance of Chevron? Why should every American care about it? And do you see the existing precedent being challenged or overturned?

Philip Hamburger: Chevron is a case from the early 1980s which established the current treatment of agency interpretations. And agency interpretations of statutes may not seem very central, but it has become so.

Ordinarily, prototypically, Congress will expressly authorize an agency to issue some rule that then, in turn, binds Americans. And that’s bad enough. And under current Supreme Court doctrine, there are very few limits on what Congress can do in that respect.

But agencies, astonishingly want even more power. And so, they claim that wherever a statute is ambiguous, or even merely silent, the agency can interpret the statute; that they can make law under the guise of interpretation and thereby establish rules not on the basis of express authorization from Congress, but on the basis simply of Congress’ ambiguity, which therefore justifies agency “interpretation.”

The result is, agencies now have expansive rulemaking authority independent of any intended authority from Congress. And this is problematic for a host of reasons.

The traditional reasons for worrying about this were those of separation of powers, and those are serious reasons. But there’s even more serious reason for concern of where the government is a party to a case, for example, an appeal from an administrative decision, Chevron deference requires the judges to defer to the agency interpretation. And that means it requires the judges not merely to favor the agency’s interpretation as a matter of lawmaking, but also to favor the legal position of one of the parties before them. And that means it’s a profound violation of due process.

I wrote a piece on this called “Chevron Bias.” And I’m glad to say increasingly, judges are paying attention to this problem. And Judge Gorsuch is one of those who recognizes that this is central to our understanding of an independent and fair judiciary. If we keep Chevron deference, we will have a corrupted judiciary. And Gorsuch understands that.

Ben Weingarten: And Justice Gorsuch, if I’m not incorrect, joins Justice Thomas as well in the Supreme Court as someone who is at least skeptical of administrative power. And you also have an administration, a presidential administration, that is on the record as saying it is hostile to the administrative state, with Steve Bannon, a chief strategist and adviser, calling for the “deconstruction” of the administrative state. Practically, if you were advising an administration on how to take on the entire administrative system, which is so embedded at this point in our political system and process, what would be your recommendation for taking it on?

Philip Hamburger: I’m not going to rely on Congress to do anything about this. They’ve shown no aptitude for that. I hope the executive will take action. I don’t know anything about Steve Bannon. But I do know that this is a problem that could be largely addressed by the executive.

If they, for example, were to ask their lawyers not to seek Chevron deference because that would be participating in due process violation; if they were to send rules to Congress — administrative agency rules to Congress asking Congress to put them in statutes — thereby shifting lawmaking back to Congress; if they were to do these sorts of things, we’d be in good shape. It would be a very important move towards restoring our constitutional system of government.

Personally though, I confess, I think the best solution will be litigation. And actually, I have just recently formed a new civil liberties organization to resist the intrusions of administrative power on civil liberties. It’s called The New Civil Liberties Alliance. And I hope we will litigate some of these issues, and I think with success.

Ben Weingarten: And you expressed skepticism about Congress’ appetite for, or aptitude for challenging the administrative state. There’s something that on its face is counterintuitive about that because what you’re saying is that Congress is fine to turn over power to bureaucrats instead of keeping legislative power for itself. Explain to our audience why it is in our representatives’ best political self-interest to turn over power to agencies.

Philip Hamburger: Well, there’s been much academic writing on the subject because it is puzzling. Normally, if you ask classical political theorists, “What do rulers want?” The answer is, “They want power.” But apparently not.

Apparently, congressmen prefer not to be held responsible for tough decisions. So they want to claim the merit of, let’s say, voting for clean air, but they want someone else to take the blame of actually imposing rigorous rules on others, even rules that violate civil liberties. And that’s really quite disgraceful.

Now, I have a little bit of hope for a few congressmen because some of them I think will recognize that by giving so much power to agencies, they have actually turned over not only power, but also fundraising to the president. And so, I hope that some of them recognize that if they try to regain some of their legislative power, they may actually do better on fundraising.

However, as I said, I don’t place much hope in Congress. I do think litigation is the way to go, and I think that would be fun.

An Encounter Interview
October 26, 2017