A Return to Absolute Power?

Few Americans spend much time thinking about the vagaries of administrative law—the rules and procedures our government uses in formulating and enforcing regulations—let alone its effects on our lives and liberties. Anyone warning of the imminent demise of Americans’ liberties is likely to be dismissed as a kook. Anyone claiming to find such dangers in the actions of fussy little bureaucrats toiling in the bowels of federal agencies most likely would be simply laughed at.

Philip Hamburger, a distinguished legal historian teaching at Columbia Law School, has no alarmist, overwrought story to tell. Nonetheless, his latest book is intended to spark reconsideration among lawyers, political scientists, and educated citizens about the effects of administrative law on American government and on Americans’ rights and liberties. His central point: Administrative law is—not tends toward, not encourages, but in itself is—a form of arbitrary power inconsistent with our traditions of ordered liberty.

In this powerful book, Hamburger argues that constitutional government grew from people’s attempts to rein in arbitrary power.  In particular, kings long had claimed the absolute power or prerogative to rule outside and above the law. They claimed the right to act in an arbitrary manner, answering to no one for their actions. Over time, this prerogative power was limited by legal procedures, though it continued to show itself in claims to act above the law in times of “necessity,” particularly in time of war. The American constitutional achievement was to enshrine both procedural due process (most importantly jury trials and rules against self-incrimination) and the separation of powers as checks on arbitrary power. The great constitutional thinker Montesquieu had defined the combination of legislative, executive, and judicial power as “arbitrary” because it was above law, meaning that the one wielding it had to answer to no one. And, as Americans had long known, one who need not answer for his use of power inevitably will use it for his own ends and come to tyrannize the people. Customary, common law had enshrined due process as the most effective protection for people facing the overwhelming power of the state, and these protections, first set down in Magna Carta in 1215, developed into powerful tools against arbitrary proceedings aimed at eliminating opposition to arbitrary governmental actions.

A key reason why Americans rarely concern themselves with administrative law is that few of us have any interaction with it, or with those who apply and enforce it.  Or so we think.  Administrative law has had a major role in reshaping our economy and, increasingly, our individual, even private lives. Where previously only large corporations had to fear administrative rules and procedures, any one of us now could be in the crosshairs.  In point of fact, this has been the case for many decades, as anyone unfortunate enough to suffer an audit from the IRS knows full well. But few of us (fingers crossed!) receive the “full audit,” hence we all see it as an extraordinary catastrophe we fear, but hope never to experience. These days, however, even the solitary farmer who wants to drain a pond on his property has reason to fear a visit from government functionaries, in this case from the Environmental Protection Agency. And pity the farmer who gets on the wrong side of the protectors of the environment.

Defenders of administrative law argue that it is necessary for the government to meet the challenges of an advanced industrial society. We will not have safe food or drinking water, will not be able to insure ourselves against discrimination or bad economic times, the argument goes, unless we recognize agencies’ need and right to write their own rules (Congress does not write most of the rules we must follow, federal agencies do) and enforce them in a “streamlined” fashion.

It is precisely this “streamlining,” justified on the old, absolutist grounds of “necessity,” that undermines protections for citizens and limitations on the power of government functionaries to bully us into falling into line with their will-of-the-moment. Hamburger focuses on the means used by agencies in enforcing their rules—means that provide precious little protection for the protections Americans once recognized as our birthright.

First applied only to powerful corporations, many of which cooperated in setting up agencies to keep out unwanted competition, administrative rules openly violate constitutional limitations and procedures. Like the old High Commission of Henry VIII, today’s bureaucratic powers can force organizations and individuals to testify against themselves, including by forcing them to provide answers to administrative questions, backed up by the power of the subpoena. All too often, these questionnaires are, in reality, attempts to find dirt on regulated people and entities in an attempt to gain leverage over them. With no one actually accusing them of any wrongdoing, those caught in the government’s crosshairs must answer questions without knowing that they are charged with anything, without the protections of a grand jury, and without even a neutral judge. Instead, they must defend themselves in inquisitorial proceedings overseen by administrative law judges trained to oversee a process that favors the government.

Most of those caught in the administrative machinery never enjoy even the limited, sub-constitutional protections of administrative law. Administrators feel free to bully those they regulate into signing “consent decrees” agreeing to ad-hoc, one-sided rules and policy goals with no basis even in regulatory law, in order to avoid being sucked into costly administrative litigation. And, even below this level of coercion, administrators themselves habitually change enforcement manuals and issue various decrees under ironic labels akin to “letters of advice” changing and imposing new rules, safe in the knowledge that those they regulate lack the will and wherewithal to put up much of a fight.

These methods likely will not go away soon. Indeed, they are likely to expand, despite their clear violation of basic customs and understandings of our constitutional order. In part this is because few of us, and almost no one among our political elites, has any sympathy for the corporate entities and officers who generally are its victims—and who often deserve some blame for cooperating in creating and maintaining a system that by its nature stifles economic competition. But more and more of us, we mere American citizens, are affected by these methods and procedures. These arbitrary methods are used to alter economic policy and to shape markets and market choices.  “Green energy” is only the latest bureaucratic fad, being added to almost maniacal “safety” concerns that list sand as a hazardous substance even while failing to protect us from obvious dangers (remember that poisoned dog food and those lead-painted toys from China?). Small businesses fail or never get started because entrepreneurs can afford neither the time nor the expense of defending themselves against arbitrary enforcement of arbitrary rules carried out in arbitrary proceedings. And so our economic system becomes increasingly centralized in the hands of those few with the wherewithal to combat or co-opt administrative structures and procedures. This is the reality of crony-capitalism, the product of arbitrary power exercised in the name of the people but for the advantage of ideologues in government and the most powerful and well-connected officers of corporations.

Nowhere does Hamburger claim that the sky is falling, or that we have succumbed to a leviathan state. What he does very well is demonstrate the nature of the power we have allowed an increasingly large role in the running of our government. It is up to us to demand that those who claim to be saving us from all kinds of danger through government action do not allow their drive to “do good” to so expand the realm of arbitrary, administrative power that our government and society no longer will deserve to be called “free.”

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Editor’s note: the featured image was provided by the U.S. Government, and is in the public domain.