In this discussion of the future of Freedom, Governor Mitch Daniels talks with Philip Hamburger, legal scholar and founder of the New Civil Liberties Alliance, about the executive branch. The two agree that federal agencies have committed at least two sets of sins. First, they have unjustifiably and unnecessarily violated the rights of citizens, and secondly they have done so on flimsy constitutional grounds.
Professor Hamburger says the rise of the administrative state is due to two factors. First, Congress has a strong political incentive to delegate—especially when it comes to politically sensitive information—and in doing so unconstitutionally abdicates legislative authority to the executive. The second is a progressive vision of serving in one place, common management and a greater role in government. At the beginning 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 just broken out. The Supreme Court’s reversal of the Chevron doctrine has drawn considerable attention to the issue of judicial deference. What will be the real consequences of closing the Chevron deference door? Only experience will tell. If economic history is any indication, it is that human systems tend to adapt whenever institutional rules are restructured. Bureaucrats are the same. So, shutting down Chevron’s honor may not change the balance of power—it will depend on how agencies adapt to new ways of doing things. (See Lynne Kiesling’s take on new incentives post Chevron.)
And the classical liberal grass doesn’t seem so green in front of the courts, which also have a history of trampling on economic rights. Most famous in 1938 US v. Caroline Products economic rights are placed in the lowest priority of legal review. Under 2005 Kelo v. New London, courts waive large areas of property to obtain the appropriate scope of eminent domain. And in 1992 Lucas v. South Carolina Coastal Council, a regulation does not count as a taking unless it destroys almost the entire value of the property. The list goes on (see The Dirty Dozen by Bob Levy and Chip Mellor). Adherence to the rule of law may bring us out of the shadow of the constitution, but there seems little certainty that it will improve the protection of rights.
How did we get here? Hamburger attributes the rise of the bureaucracy to the American form of classism, in which the Progressive elite impose their good intentions and faith in government on everyone through state appropriations. This certainly jibes with the disturbing 2023 Rasmussen poll showing the great difference between the views of the elite and the masses on economic, social, and political issues.
However, we would be wrong to underestimate the power of populism. A running theme in James Buchanan’s work is that Leviathan is us, and Central Government is ultimately the result of self-government.
“When we talk about controlling Leviathan, we should be referring to self-control, not some tool that uses the decisions of others besides us. Wide acceptance of this simple truth can work wonders. If people could stop and stop talking about their desire for bad people and start looking at institutions run by ordinary people, there might be more ways to change the real society.” (The Limits of Freedompage.188)
On Main Street and the kitchen table, not just on K Street and the administrative law bench, where it takes hold.
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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