Administrative State

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An Administrative State or Regulatory State is generally, as was defined by John Rohr: "the expert agency tasked with important governing functions through loosely drawn statutes that empower unelected officials to undertake such important matters as preventing 'unfair competition', granting licenses as 'the public interest, convenience or necessity' will indicate, maintaining a 'fair and orderly market,' and so forth."[1]

An Administrative State has been described as 'Bureaucratic Despotism' by Hillsdale College.[2]

History

Professor Ronald J. Pestritto, a professor at Hillsdale and a staff member of the Heritage Foundation[3] notes that the rise of the modern overbearing administrative state came under F.D.R., while it was born several decades earlier.[4]

Woodrow Wilson and public administration

For a more detailed treatment, see The Study of Administration.

Woodrow Wilson was a founder of the study of public administration by political scientists. Wilson believed in a strong, active role for the central government and as president succeeded in establishing legislation that significantly enlarged its regulatory powers. With the publication of Congressional Government in 1885, Wilson established himself as a leader of the political reform movement of the day. The book was the first of its kind to analyze policymaking by the central government and to provide recommendations for changing the process. Wilson was one of the three most prominent public administrators of the 1880s and 1890s. As an academician, he promoted a separate department for the study of public administration and wrote 'The Study of Administration' (1887), the first published essay by a university scholar on the subject, established Wilson as the leading authority in the field. During the next year he inaugurated a course in public administration at Johns Hopkins University, providing three 6-week lecture series arranged in a 3-year cycle. In 1889, Wilson published a textbook, The State, and, in 1891, he began at Hopkins a new 3-year course which was a further significant step in the development of the study of administration. He was one of the first scholars to realize fully that all government was ultimately to be administration.[5]

As noted by Professor Pestritto, Wilson wrote:[4]

The functions of government are in a very real sense independent of legislation, and even constitutions, because [they are] as old as government and inherent in its very nature. The bulk and complex minuteness of our positive law, which covers almost every case that can arise in Administration, obscures for us the fact that Administration cannot wait upon legislation, but must be given leave, or take it, to proceed without specific warrant in giving effect to the characteristic life of the State.[6]

Collectivism

Wilson laid out a vision of collectivism with respect to eroding the Constitutional Separation of Powers. Government powers are separated on purpose to prevent harm to the citizens, but Wilson saw the separation as an impediment,[7] and thought government efficiency could be increased by bringing the branches together. At a campaign stop during the 1912 election, Wilson asked "What is Progress, and this was his response:

No living thing can have its organs offset against each other, as checks, and live. On the contrary, its life is dependent upon their quick co-operation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day, of specialization, with a common task and purpose. Their co-operation is indispensable, their warfare fatal. There can be no successful government without the intimate, instinctive co-ordination of the organs of life and action.[8]

The reduction or elimination of the separation of powers is a necessary foundational component of the modern Administrative State.

Frank Johnson Goodnow

Frank Johnson Goodnow was another important early theorist about administration.[4] He wrote:

Before we can hope that administrative officers can occupy a position reasonably permanent in character and reasonably free from political influence, we must recognize the existence of an administrative function whose discharge must be uninfluenced by political considerations. This England and Germany, and France though to a much less degree, have done. To this fact in large part is due the excellence of their administrative systems. Under such conditions the government may safely be intrusted with much work which, until the people of the United States attain to the same conception, cannot be intrusted to their governmental organs.[9]

Charles Van Hise

Charles Van Hise, an advisor to Theodore Roosevelt, held similar beliefs in the role of administration and its power to regulate. He wrote:

The plan presented does not involve taking over property or its management. Indeed, it does not involve anything whatever except securing to the public a reasonable price in the same manner that reasonable prices have been secured from the public utilities, the only way in which it has been found practicable to do this. It is probably the only satisfactory way in which fair prices can be secured from the great industrial corporations. Under the plan proposed the industrial concentrations remain private property in charge of those who own them just as at present. Being granted the privilege of cooperation in restraint of trade, they are forbidden to take advantage of the public by charging unreasonable prices ; and if forbidden so to charge, there must be some organism which will enforce the prohibition. The prohibition probably could be enforced by lawsuit under common law; and therefore the proposal made simply gives to an efficient administrative body authority to do what the courts probably have power to do under the common law, but which they could not efficiently perform. Those who hold up the bogy of socialism because of the modest proposal to allow commissions to regulate prices, if they reflect, must conclude that they have only a bogy.

He summed this up by writing that it is "Regulation, not socialism".[10]

Stuart Chase

Stuart Chase, a socialist and an advisor to Franklin Delano Roosevelt described an administrative state, albeit more from the standpoint of a list of goals in his proposal for Political System X.

Chase calls for a lot of controls, but not once does he call for nationalization, which is typical for socialists. As Ronald Reagan put it:

Now it doesn't require expropriation or confiscation of private property or business to impose socialism on a people. What does it mean whether you hold the deed to the—or the title to your business or property if the government holds the power of life and death over that business or property?[11]

Chase, like Wilson and others, believed that a strong central government was necessary in order to achieve various goals.

Early attempts at setting up regulatory commissions include the Interstate Commerce Commission, the United States Department of Commerce and Labor, and the Federal Radio Commission.

Affirmation by the Supreme Court

Over the years there have been many court cases in which the Supreme Court has played its part. The SEC v. Chenery Corp case[4] is often referenced in regard to administrative law. But well before Chenery the Supreme Court affirmed the actual existence of administrative agencies, in the J. W. Hampton, Jr. & Co. v. United States case.[12] In the Hampton case, the court held that:

If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under congressional authority.

Justice Clarence Thomas offered a stinging rebuke of this intelligible principle in his written opinion in the Whitman v. American Trucking Assns., Inc. case,[13][14] and has on other occasions made similar observations.[15][16]

Modern

While the early progressives set their sites on regulating trusts and corporations, this has evolved. ObamaCare, for example, does include loose definitions which allow for the regulation of corporations, but it also aims toward regulating individuals as well. The growth of the administrative state can generally be observed in direct correlation as bureaucracies and judges adhering to a Living Constitution move us further and further away from what is actually in the Constitution.[17][18]

Primary sources

  • Waldo, Dwight. The Administrative State (1948)
  • Burnham, James. The Managerial Revolution (1941)
  • Wilson, Woodrow. The Study of Administration' (1887)

See also

References

  1. (1942) Indian Affairs and the Administrative State in the Nineteenth Century. Cambridge University Press, 4. 
  2. Constitution 201: The Progressive Rejection of the Founding and the Rise of Bureaucratic Despotism. Hillsdale College.
  3. Ronald J Pestritto, Ph.D.. Heritage Foundation.
  4. 4.0 4.1 4.2 4.3 The Birth of the Administrative State: Where It Came From and What It Means for Limited Government. Heritage Foundation.
  5. Richard J. Stillman, II, "Woodrow Wilson and the Study of Administration: A New Look at an Old Essay," American Political Science Review, Vol. 67, No. 2 (Jun., 1973), pp. 582-588 in JSTOR; Larry Walker, "Woodrow Wilson, Progressive Reform, and Public Administration," Political Science Quarterly, Vol. 104, No. 3 (Autumn, 1989), pp. 509-525 in JSTOR
  6. (1969) The Papers of Woodrow Wilson, Volume 7. Princeton University Press, 121. 
  7. The American State from the Civil War to the New Deal: The Twilight of Constitutionalism and the Triumph of Progressivism
  8. Woodrow Wilson Asks "What Is Progress?"
  9. (1900) Politics and Administration: A Study in Government. Macmillan, 86–87. 
  10. (1912) Concentration and Control: A Solution of the Trust Problem in the United States. Macmillan, 262. 
  11. Reagan, Ronald (October 27, 1964). A Time for Choosing.
  12. J. W. Hampton, Jr. & Co. v. United States (April 9, 1928).
  13. Volokh, Sasha. Justice Thomas delivers what he promised on February 27, 2001. Washington Post.
  14. Whitman v. American Trucking Assns., Inc. (February 27, 2001).
  15. Fitzgibbons, Mark. A little-noted masterpiece of constitutional scholarship by Justice Thomas. American Thinker.
  16. U.S. DEPARTMENT OF TRANSPORTATION v. ASSOCIATION OF AMERICAN RAILROADS (March 9, 2015).
  17. Nondelegation and the Administrative State
  18. Battling the modern American administrative state

External links