Government by unelected experts isn’t all that different from the ‘royal prerogative’ of 17th-century England, argues constitutional scholar Philip Hamburger.
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 a trial 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. Read the rest of this entry »
Progressive centrism was never thoroughly fleshed out, but the basic idea was to combine the goals of populism—harnessing the power of government to do good for the ‘little guy’—with the New Democrats’ recognition of markets as a powerful tool for achieving those goals. Combined with an incrementalist approach, Judis and Teixeira argued, Democrats would form a new majority coalition. Oops.
Sean Trende writes: The 2000 election left a Democratic Party that was simultaneously angry, dispirited and divided. Populists believed that Al Gore made a terrible mistake by embracing the “New Democrats”—what we then called a group of socially moderate, culturally cosmopolitan, fiscally cautious Democrats in the ’90s—thereby failing to excite working-class whites. New Democrats, by contrast, thought Gore’s late adoption of heavily populist rhetoric had needlessly alienated whites with college degrees, costing him the election.
As this fight wore on, two important left-of-center thinkers, John Judis and Ruy Teixeira, wrote a book called “The Emerging Democratic Majority.” Although the book is known as a demographic work, the demographics discussed so extensively in it are, in fact, subordinate to the larger goal of the book: to find a way for the two factions in the Democratic Party described above to live together, and to win. Their framework was explicitly Hegelian/Fichtean: They described the “thesis” and “antithesis” as being the populist Democrats and the “New Democrats.” Their proposed synthesis: what they called “progressive centrism.”
Progressive centrism was never thoroughly fleshed out, but the basic idea was to combine the goals of populism—harnessing the power of government to do good for the “little guy”—with the New Democrats’ recognition of markets as a powerful tool for achieving those goals. Combined with an incrementalist approach, Judis and Teixeira argued, Democrats would form a new majority coalition. This coalition would be an expansion of the old “McGovern” coalition, and would consist of working-class whites, women, African-Americans and Hispanics, as well as professional whites living in what they called “ideopolises” – high-tech areas filled with state employees and professional workers.
In keeping with the progressive view that history is something with an arc that can be predicted and even bent to our will, “The Emerging Democratic Majority” was expressly grounded in realignment theory. This view of elections holds that the arc of history moves in roughly 30-year epicycles, where the country progresses through stages where different parties hold a position as the dominant “sun” party, or the pale “moon” party (to borrow the terminology of Samuel Lubell). The Democratic majority, we were told, would emerge fully in the 2000s. Read the rest of this entry »