Government by unelected
experts isn’t all that different from the ‘royal prerogative’ of 17th-century
England, argues constitutional scholar Philip Hamburger. by John Tierney,
6/9/17, NewYork
What’s the greatest threat
to liberty in America? Liberals rail at Donald Trump’s executive orders on
immigration and his hostility toward the press, while conservatives vow to
reverse Barack Obama’s regulatory assault on religion, education and business.
Philip Hamburger says both sides are thinking too small.
Like the blind men in
the fable who try to describe an elephant by feeling different parts of its
body, they’re not perceiving the whole problem: the enormous rogue beast known
as the administrative state.
Sometimes called the
regulatory state or the deep state, it is a government within the government,
run by the president and the dozens of federal agencies that assume powers once
claimed only by kings. In place of royal decrees, they issue rules and send out
“guidance” letters like the one from an Education Department official in 2011
that stripped college students of due process when accused of sexual
misconduct.
Unelected bureaucrats
not only write their own laws, they also interpret these laws and enforce them in
their own courts with their own judges. All this is in blatant violation of the
Constitution, says Mr. Hamburger, 60, a constitutional scholar and winner of
the Manhattan Institute’s Hayek Prize last year for his scholarly 2014 book,
“Is Administrative Law Unlawful?” (Spoiler alert: Yes.)
“Essentially, much of
the Bill of Rights has been gutted,” he says, sitting in his office at Columbia
Law School. “The government can choose to proceed against you in atrial in
court with constitutional processes, or it can use an administrative proceeding
where you don’t have the right to be heard by a real judge or a jury and you
don’t have the full due process of law. Our fundamental procedural freedoms,
which once were guarantees, have become mere options.”
In volume and
complexity, the edicts from federal agencies exceed the laws passed by Congress
by orders of magnitude. “The administrative state has become the government’s
predominant mode of contact with citizens,” Mr. Hamburger says. “Ultimately
this is not about the politics of left or right. Unlawful government power
should worry everybody.”
Defenders of agencies
like the Securities and Exchange Commission or the Environmental Protection
Agency often describe them as the only practical way to regulate today’s
complex world. The Founding Fathers, they argue, could not have imagined the
challenges that face a large and technologically advanced society, so Congress
and the judiciary have wisely delegated their duties by giving new powers to
experts in executive-branch agencies.
Mr. Hamburger doesn’t
buy it. In his view, not only is such delegation unconstitutional, it’s nothing
new. The founders, far from being naive about the need for expert guidance,
limited executive powers precisely because of the abuses of 17th-century kings
like James I.
James, who reigned in
England from 1603 through 1625, claimed that divinely granted “absolute power”
authorized him to suspend laws enacted by Parliament or dispense with them for
any favored person. Mr. Hamburger likens this royal “dispensing” power to
modern agency “waivers,” like the ones from the Obama administration exempting
McDonald’s and
other corporations from complying with provisions of the Affordable Care
Act.
James also made his own
laws, bypassing Parliament and the courts by issuing proclamations and using
his “royal prerogative” to establish commissions and tribunals. He exploited
the infamous Star Chamber, a court that got its name from the gilded stars on
its ceiling.
“The Hollywood version of
the Star Chamber is a torture chamber where the walls were speckled with
blood,” Mr.Hamburger says. “But torture was a very minor part of its business.
It was very bureaucratic. Like modern administrative agencies, it commissioned
expert reports, issued decrees and enforced them. It had regulations
controlling the press, and it issued rules for urban development, environmental
matters and various industries.”
James’s claims were
rebuffed by England’s chief justice, Edward Coke, who in 1610 declared that the
king “by his proclamation cannot create any offense which was not an offense
before. ”The king eventually dismissed Coke, and expansive royal powers
continued to be exercised by James and his successor, Charles I. The angry
backlash ultimately prompted Parliament to abolish the Star Chamber and helped
provoke a civil war that ended with the beheading of Charles in 1649.
A subsequent king, James
II, took the throne in 1685 and tried to reassert the prerogative power. But he
was dethroned in the Glorious Revolution in 1688, which was followed by Parliament’s
adoption of a bill of rights limiting the monarch and reasserting the primacy
of Parliament and the courts. That history inspired the American Constitution’s
limits on the executive branch, which James Madison explained as a protection
against “the danger to liberty from the overgrown and all-grasping prerogative
of an hereditary magistrate.”
“The framers of the
Constitution were very clear about this,” Mr. Hamburger says, rummaging in a
drawer for a pocket edition. He opens to the first page, featuring the Preamble
and Article 1, which begins: “All legislative Powers herein granted shall be
vested in a Congress.”
“That first word is
crucial,” he says. “The very first substantive word of the Constitution is
‘all.’ That makes it an exclusive vesting of the legislative powers in an
elected legislature. Congress cannot delegate the legislative powers to an
agency, just as judges cannot delegate their power to an agency.”
Those restrictions on executive
power have been disappearing since the late 19thcentury, starting with the
creation of the Interstate Commerce Commission in 1887. Centralized power appealed
to big business—railroads found commissioners easier to manipulate than
legislators—as well as to American intellectuals who’d studied public policy at
German universities. Unlike Britain, Germany had rejected constitutional
restraints in favor of a Prussian model that gave administrative agencies the
prerogative powers of the king.
Mr. Hamburger believes
it’s no coincidence that the growth of America’s administrative state coincided
with the addition to the electorate of Catholic immigrants, blacks and other minorities.
WASP progressives like Woodrow Wilson considered these groups an obstacle to
reform.
“The bulk of mankind is
rigidly unphilosophical, and nowadays the bulk of mankind votes,” Wilson
complained, noting in particular the difficulty of winning over the minds “of
Irishmen, of Germans, of Negroes.” His solution was to push his agenda using
federal agencies staffed by experts of his own caste—what Mr. Hamburger calls
the “knowledge class.” Wilson was the only president ever to hold a doctorate.
“There’s been something
of a bait and switch,” Mr. Hamburger says. “We talk about the importance of
expanding voting rights, but behind the scenes there’s been a transfer of power
from voters to members of the knowledge class. A large part of the knowledge
class, Republicans as well as Democrats, went out of their way to make the
administrative state work.”
Mr. Hamburger was born
into the knowledge class. He grew up in a book-filled house near New Haven,
Conn. His father was a Yale law professor and his mother a researcher in
economics and intellectual history. During his father’s sabbaticals in London,
Philip acquired a passion for 17th-century English history and spent long hours
studying manuscripts at the British Museum. That’s where he learned about the royal
prerogative.
He went to Princeton and
then Yale Law School, where he avoided courses on administrative law, which
struck him as “tedious beyond belief.” He became slightly more interested
during a stint as a corporate lawyer specializing in taxes—he could see the
sweeping powers wielded by the Internal Revenue Service—but the topic didn’t
engage him until midway through his academic career.
While at the University
of Chicago, he heard of a colleague’s inability to publish a research paper
because the study had not been approved ahead of time by a federally mandated
institutional review board. That sounded like an unconstitutional suppression
of free speech and it reminded Mr. Hamburger of those manuscripts at the
British Museum.
Why the return of the
royal prerogative? “The answer rests ultimately on human nature,” Mr. Hamburger
writes in “The Administrative Threat,” a new short book aimed at a general
readership. “Ever tempted to exert more power with less effort, rulers are
rarely content to govern merely through the law.”
Instead, presidents
govern by interpreting statutes in ways lawmakers never imagined. Barack Obama
openly boasted of his intention to bypass Congress: “I’ve got a pen and I’ve
got a phone.” Unable to persuade a Congress controlled by his own party to
regulate carbon dioxide, Mr. Obama did
it himself in 2009 by having the EPA declare it a pollutant covered by a
decades-old law. (In 2007 the Supreme Court had affirmed the EPA’s authority to
do so.)
Similarly, the Title IX
legislation passed in 1972 was intended mainly to protect women in higher
education from employment discrimination. Under Mr. Obama, Education Department
bureaucrats used it to issue orders about bathrooms for transgender students at
public schools and to mandate campus tribunals to adjudicate sexual misconduct—including
“verbal misconduct,” or speech—that are in many ways less fair to the accused
than the Star Chamber.
At this point, the idea
of restraining the executive branch may seem quixotic, but Mr. Hamburger says
there are practical ways to do so. One would be to make government officials
financially accountable for their excesses, as they were in the 18th and 19th
centuries, when they could be sued individually for damages. Today they’re
protected thanks to “qualified immunity,” a doctrine Mr. Hamburger thinks
should be narrowed.
“One does have to worry
about frivolous lawsuits against government officers who have to make quick
decisions in the field, like police officers,” he says. “But someone sitting
behind a desk at the EPA or the SEC has plenty of time to consult lawyers
before acting. There’s no reason to give them qualified immunity. They’ll be
more careful not to exceed their constitutional authority if they have to weigh
the risk of losing their own money.”
Another way of
restraining agencies—one President Trump could adopt on his own—would be to
require them to submit new rules to Congress for approval instead of imposing
them by fiat. The president could also order at least some agencies to resolve
disputes in regular courts instead of using administrative judges, who are departmental
employees. Meanwhile, Congress could reclaim its legislative power by going
through regulations, agency by agency, and deciding which ones to enact into
law.
Mr. Hamburger’s chief
hope for reform lies in the courts, which in earlier eras rebuffed the
executive branch’s power grabs. Those rulings so frustrated both Theodore
Roosevelt and Franklin D. Roosevelt that they threatened retaliation—such as
FDR’s plan to pack the Supreme Court by expanding its size. Eventually judges
surrendered and validated sweeping executive powers. Mr. Hamburger calls it
“one of the most shameful episodes in the history of the federal judiciary.”
The Supreme Court
capitulated further in decisions like Chevron v. Natural Resources
Defense Council (1984), which requires judges to defer to any “reasonable
interpretation” of an ambiguous statute by a federal agency.“ Chevron deference
should be called Chevron bias,” Mr. Hamburger says. “It requires
judges to abandon due process and independent judgment. The courts have corrupted
their processes by saying that when the government is a party in case, they
will be systematically biased—they will favor the more powerful party.”
Mr. Hamburger sees a
good chance that the high court will limit and eventually abandon
the Chevron doctrine, and he expects other litigation giving the
judiciary a chance to reassert its powers and protect constitutional rights.
“Slowly, step by step, we can persuade judges to recognize the risks of what
they’ve done so far and to grapple with this very dangerous type of power,” he
says. The judiciary, like academia, has many liberals who have been sympathetic
to the growth of executive power, but their perspective may be changing.
“Administrative power is
like off-road driving,” Mr. Hamburger continues. “It’s exhilarating to operate
off-road when you’re in the driver’s seat, but it’s a little unnerving for
everyone else.”
He says he observed this
effect during are cent conversation with a prominent legal scholar. The
colleague, a longtime defender of administrative law, was discussing the topic
shortly after Mr. Trump’s inauguration.
The colleague told Mr.
Hamburger: “I am beginning to see the merit of your ideas.”
Mr.Tierney is a
contributing editor of the Manhattan Institute’s City Journal.
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