Deconstructing the Administrative State

Restoring the "Reason of the Republic"

John Marini, Ken Masugi

• Publisher: Encounter Books
• Year: 2019
• ISBN:
  9781641770248
• Topic: Política y relaciones internacionales
• Subtopic: Gobierno estadounidense

The election of Donald J. Trump to the presidency shocked the political establishment, triggering a wave of hysteria among the bicoastal elite that may yet never subside. The biggest shockwaves of all however were felt not in the progressive parishes of Manhattan or San Francisco, but in the halls of the political elite's cherished and oft-overlooked center of power: Washington, D.C.'s sprawling "administrative state." For President Trump represented an existential threat to its denizens, which came to be known as "swamp creatures."How did it come to pass that the "deconstruction" of this obscure institution - the "draining of the swamp" - would become a core aim of the Trump administration, impacting everything from judicial appointments to the federal budget and regulatory policy? Could public aversion to policies and practices for which the administrative state was sometimes surreptitiously and other times overtly responsible explain President Trump's rise? What was the intellectual basis for the argument that the administrative state need be dismantled in the first place?The answers to these questions and many more lie in the underappreciated but revolutionary scholarship of Professor John Marini, collected in his timely, comprehensive, accessible new book, Deconstructing the Administrative State. Deconstructing the Administrative State tells the critical missed story of the last century of political history: The ascendance of the theory behind and resultant growth of an administrative state that has supplanted limited constitutional government with the tyranny of unbounded anticonstitutional bureaucracy. As Prof. Marini argues, the administrative state, an invented fourth branch of government, has usurped and consolidated the powers of the other three branches in the hands of unelected bureaucratic elites. It represents the living, breathing manifestation of technocratic progressive government, a system that violates the letter of the Constitution and the spirit of our Declaration of Independence. In so doing, the administrative state attacks the sovereign individual, undermines political legitimacy by rejecting consent of the governed and subverts justice itself. In sum, Prof. Marini argues that the administrative state's rise represents a change of the regime - who rules - an actual overthrow of our Constitution by the elites over "we the people."In Deconstructing the Administrative State, Prof. Marini illustrates the existential threat of the administrate state to our Republic, exposes the regressive philosophy from which it springs and argues for the reassertion of the Founding principles to restore self-government. Deconstructing the Administrative State aims to educate all Americans from the "deplorable" layman to the veteran policymaker. As Justice Clarence Thomas's self-described first mentor on the Constitution, Prof. Marini's views have inspired his jurisprudential philosophy at the Supreme Court. They have served as the unacknowledged intellectual basis for the Trump administration's efforts to "deconstruct the administrative state." Their influence continues to grow among conservative lawyers, jurists and activists. The time is ripe to apply the lessons of Prof. Marini's life's work and seize this remarkable opportunity to restore power to its rightful owners: the American people.

PART ONE

THE TRIUMPH OF THE ADMINISTRATIVE STATE OVER THE CONSTITUTION

By Ken Masugi

In comments at the Heritage Foundation in October 2016, Justice Clarence Thomas twice mentioned what he termed his first “mentors” on the American Constitution, John Marini and me. We worked for him back in the late 1980s, when he was chairman of the Equal Employment Opportunity Commission. Given the occasion—a celebration of Justice Thomas’s twenty-five years on the Supreme Court and his widespread (and deserved) recognition as its most steadfast and principled conservative—it might be useful for those concerned about constitutionalism and the court to better understand why Thomas might have emphasized two obscure academics, neither lawyers, as his first constitutional guides. In talks about his autobiography he explained that instead of speechwriters, he brought onto his staff political theorists who might discuss with him fundamental political principles of America and the West, such as liberty, natural law, and limited government, which support an originalist understanding of the Constitution.

Marini is the principal advocate of the notion that the “administrative state” has usurped Congress and the presidency and upset the separation of powers. In sum, the twentieth-century Congress, followed by its most recent successors, has surrendered its powers to the executive branch and been satisfied to pass hollow legislation that confers the real lawmaking powers on the unelected bureaucracy and judiciary. These institutions and, of course, ubiquitous lawyers have all come through the liberal academy—its law schools and political science and policy programs.

Marini, now a professor at the University of Nevada, Reno, first articulated this radical notion at Claremont Graduate School back in the 1970s and has continued to develop it, by expounding on the basic constitutional concepts of the separation of powers and federalism. He has also applied the notion of the administrative state to policy issues such as the budget, civil rights, and immigration. He has argued that frustration with the administrative state and the policies it encourages may explain the rise of Donald Trump. Marini’s concept of the administrative state is far more radical, persuasive, and significant than similar notions favored by such profound commentators as Christopher DeMuth, Michael Greve, and Philip Hamburger. Another representative of this conservative viewpoint, columnist George Will, recently elaborated, in a 2015 op-ed for the Washington Post, how he believes that Thomas’s objection to the administrative state lies in the issue of the delegation of congressional powers to the executive—an important issue, but in fact it is neither Thomas’s nor Marini’s ultimate concern. Neither Will nor others, such as Senator Ben Sasse, seem to accept that the administrative state represents a change of regime, an actual overthrow of the Constitution of 1787. Constitutional politics therefore requires a rethinking of politics, and thus requires a candidate on the order of Donald Trump, who comes from outside the system created by the administrative state.

Marini came to then-Chairman Thomas’s attention when Thomas asked me to recommend some others who might also serve as special assistants. I forwarded him a copy of a Marini paper on the administrative state’s overthrow of Congress’s constitutional functions. He returned it to me with bold writing on top: “I must see Marini!!”

Never having worked in Washington, Marini deduced his notion of an unconstitutional counterstate from diverse intellectual sources, including Aristotle, The Federalist, Lincoln, and Tocqueville, as well as their interpreters, such as Leo Strauss and his students, principally Harry Jaffa. He took account of the radical assaults on constitutional government demanded by Rousseau and, above all, Hegel. The American Progressive progeny of the latter two includes primarily obscure Progressive Era political scientists and journalists; the most famous is President Woodrow Wilson. By working through their thinking, plus that of more recent political scientists, Marini concluded in theory what Thomas, who had once worked as an assistant in the Senate and in the Department of Education, learned through painful practice: republican government and the rule of law have succumbed to the current political arrangements, which have been devised by and for the benefit of Progressives. Marini has presented many of the foundational ideas for his arguments about the administrative state in three books: The Politics of Budget Control,¹ whose bland title masks the revolutionary argument it makes; a coedited book, The Imperial Congress,² and his coedited book on Progressivism, The Progressive Revolution in Politics and Political Science.³ This book’s selection includes other essays and papers written or delivered over the course of Marini’s career, all of which advance arguments about the development, structure, and effects of the administrative state. The first three essays in the introductory section provide an overview of the book’s major themes, in particular, Marini’s explanation of the administrative state, his argument that appeals to the Constitution may no longer address the political crisis of our time, and his contention that Trump’s 2016 presidential campaign illustrated the administrative state’s effects on the American character.

In a 2016 speech included in this collection Marini defends a dying constitutionalism against Washington and global elites and notes Trump’s plea for a more assertive citizenship:

In the modern administrative state, the power of government is unlimited, and the rights of citizens, and the rule of law, itself rests on a precarious ground. For if the government alone creates and confers rights, the constitution can no longer limit the power of government, nor can it protect the civil and religious liberty of its citizens.

Trump has established his candidacy on the basis of an implicit understanding that America is in the midst of a crisis. Those who oppose him deny the seriousness of the crisis and see Trump himself as the greatest danger.⁴

This makes sense of Trump’s political strategy—his assault on the elites of both parties and the media, his disdain for experts and preference for successful practitioners, his mannerisms, and his appeal for a more comprehensive notion of the common good. And it puts his immigration, trade, and national security policies in a new light. A politics of citizenship may not yet be dead. But to see the challenges such a revolutionary endeavor would require points us to the need to understand the administrative state.

Marini’s prescience on the administrative state illuminates an array of enduring, fundamental questions about America—on contemporary politics, the rise of Progressivism, the significance of Lincoln and the Civil War, and the meaning of the founding of America. The essays assembled here are a series of provocations on such topics and were selected by Marini and me; I have contributed the introductions to each section. We acknowledge the invaluable assistance of Bruno Cortes, Mickey Craig, and Douglas Jeffrey of Hillsdale College in the preparation of the manuscripts. For their abiding influence, John Marini and I thank our teachers, colleagues, and families. This book was made possible by the constant support of President Ryan Williams and the Claremont Institute, Ben Judge, Ben Weingarten, and, above all, Tom Klingenstein.

1

Hunting the Administrative State

I WANT TO THANK the Claremont Institute and Brian Kennedy for this award, the 2011 Salvatori Prize in the American Founding.… I finished my doctoral dissertation, “The Politics of Budget Control,” at Claremont Graduate School the year before the Claremont Institute was established. You could say I have followed the progress of the Institute from its origin. As the Institute grew I began to participate in some of its regular programs. The Institute was committed to a serious study of statesmanship and political philosophy, thereby hoping to reestablish a theoretical ground for an understanding of the principles of the American Founding. I like to think that my scholarship was useful in elucidating some of the problems that had threatened, and even undermined, the principles of our founding, the principles of human equality and liberty.

My work, begun nearly forty years ago, focused on the problem and danger of centralized administration. At that time, the concept of the administrative state was not yet in common usage. My dissertation was subtitled “An Analysis of the Impact of Centralized Administration on the Separation of Powers.” My research was animated by an awareness that the key institutions of the American government were not functioning in the way they were intended. It seemed as though the growth of the administrative functions of government had undermined the separation of powers and prepared the way for unlimited power in the national institutions.

The political practice of modern centralized governments, therefore, seemed to tend almost inexorably in the direction of what Tocqueville had called centralized administration. He was convinced that this was the new form of despotism that threatened democratic societies. The obsessive concern with administrative detail would render democratic man incapable of self-government.

As Tocqueville noted,

One forgets that it is above all in details that it is dangerous to enslave men. For myself, I would be brought to believe freedom less necessary in great things than in lesser ones if I thought that one could ever be assured of the one without possessing the other.… In vain you will charge these same citizens, whom you have rendered so dependent on the central power, with choosing the representatives of this power from time to time; that use of their free will, so important but so brief and so rare, will not prevent them from losing little by little the faculty of thinking, feeling, and acting by themselves, and thus from gradually falling below the level of humanity.… I add that they will soon become incapable of exercising the great, unique privilege that remains to them.… If one must conduct small affairs in which simple good sense can suffice, they determine that citizens are incapable of it; if it is a question of the government of the whole state, they entrust immense prerogatives to these citizens; they make them alternately the playthings of the sovereign and its masters, more than kings and less than men.… It is in fact difficult to conceive how men who have entirely renounced the habit of directing themselves could succeed at choosing well those who will lead them; and one will not make anyone believe that a liberal, energetic, and wise government can ever issue from the suffrage of a people of servants.¹

Even before the middle of the twentieth century, it was becoming clear that the centralized administrative state led in principle to the universal and homogeneous state. The rational, or administrative, state and its social science, although incapable of recognizing tyranny, had opened up the prospect of the greatest tyranny of all. As Leo Strauss observed, “We are now brought face to face with a tyranny which holds out the threat of becoming, thanks to ‘the conquest of nature’ and in particular human nature, what no earlier tyranny ever became: perpetual and universal.”²

It seemed that modern tyranny was linked to a rejection of nature and natural right. The political moderation of constitutional democracy was a consequence of a philosophy of government that was grounded in natural reason and the laws of nature. In his defense of constitutionalism, Leo Strauss noted, “it would not be difficult to show that … liberal or constitutional democracy comes closer to what the classics demanded than any alternative that is viable in our age.”³ As Strauss indicated, “According to the classics, the best constitution is a contrivance of reason, i.e., of conscious activity or of planning on the part of an individual or of a few individuals. It is in accordance with nature, or it is a natural order, since it fulfills to the highest degree the requirements of the perfection of human nature, or since its structure imitates the pattern of nature.”⁴ The most natural and reasonable political order or regime, in the classical sense of the term, is founded upon a political theory of constitutionalism or limited government. The American Constitution, understood in light of the principles of the Declaration of Independence, created such a regime based on modern principles of political thought.

In its American origins, administration was understood to be subordinate to a political theory of liberal constitutionalism. It had no constitutional authority in a regime that had established a limited government, one that distinguished the public and private sphere, the state and civil society. Moreover, politics and administration remained decentralized; the states and local governments were vibrant centers of political life. Most importantly, the practice of government was defined by its theory; the means were subordinate to the ends of republican government. See the Declaration of Independence. Consequently, administration was thought to be a function of practical reason or prudence, not, as it came to be in the post–Progressive Era, an objective or applied science, the instrumental rationality required in the service of the modern state. However, prudence as a political virtue required the capacity to take into account actual circumstances in light of an end. In political life, as James Madison insisted, the end is justice, or the best regime possible under the conditions that prevail. Constitutional regimes had circumscribed the powers of government, because the ends of politics were limited to the protection of the natural rights of man. That limitation was predicated upon recognition of the fact that the realm of the political does not encompass the whole range of human existence.

By attempting to understand the theoretical origins of the administrative state, it was necessary to examine the fundamental transformation in American politics brought about by the intellectual and political victory of Progressivism. It revealed a complete break with the American Founding and a total rejection of constitutionalism. It was based upon a philosophy of History. The political thought that laid the foundations of the modern administrative state—and legitimized its political practice—rested on the denial of a natural standard of political right. The understanding of nature, revealed by metaphysical reason, could not remain the ground of political right once the human mind had made the discovery of the rationality of the historical process. Thus, Hegel insisted that “the science of the state is to be nothing other than the endeavor to apprehend and portray the state as something inherently rational.”⁵ The Progressives in America accepted the Hegelian assumption that “the general dividing line between constitutions is between those that are based on nature and those based on freedom of the will.”⁶ Consequently, there could be no higher authority than the will of the sovereign people. In short, the modern administrative state was meant to establish the rational or technical means to carry out the will of the people. It required unlimited power in the state, and it was meant to replace constitutionalism or limited government.

The state, and modern social science, purports to have the capacity to institutionalize rationality in the service of will through utilization of a universal class, the bureaucracy. Paradoxically, this rationality is to be achieved through the efforts of that class of persons who are devoid of a personal passion for power. Their very disinterestedness would ensure the kind of independence and objectivity necessary to carry out the will of the people. Philosophy of History had distorted the relationship between theory and practice; practice had provided the basis for theory, and theory subsequently distorted the understanding of practice. There could be no principled or autonomous ground, in reason or nature, from which to make prudential judgments regarding politics. As a result, the practice of politics could not be moderated by any standard whatsoever. The twentieth century bore witness to the demise of moderation in politics and revealed the rise of those tyrannies spawned by the triumph of will.

The great thinkers of the nineteenth century, Strauss showed, had rejected nature as a standard of justice. They had all, in one form or another, embraced philosophy of History. Pointing specifically to the failures of Marx and Nietzsche, Strauss once again recognized the importance of prudence and moderation in political life: “But perhaps one can say that their grandiose failures make it easier for us who have experienced those failures to understand again the old saying that wisdom cannot be separated from moderation and hence to understand that wisdom requires unhesitating loyalty to a decent constitution and even to the cause of constitutionalism. Moderation will protect us against the twin dangers of visionary expectations from politics and unmanly contempt for politics.”⁷

In the twentieth century, the rational administrative structures that have become dominant in the modern state are the product of “visionary expectations from politics.” At the same time, they reflect in their neutral bureaucracies, an “unmanly contempt for politics,” an indulgence that has accompanied the belief that partisanship has ended and rational rule has begun. Constitutional government does not induce visionary expectations from government, nor is it contemptuous of politics. It is limited government. It is moderated by a rootedness in nature, which requires a reasonable and realistic understanding of the relationship of theory and practice, of ends and means. Consequently, prudence, not science, is the virtue that is paramount in terms of ...