Mises Wire

How a Limited State Becomes an Unlimited, Administrative State


[Editor’s Note: This week, a new ruling from the US Supreme court chipped away at the administrative powers of the federal bureaucracy. The case, Loper Bright Ent. vs. Raimondo, largely overturned the 1984 Chevron ruling which had solidified the bureaucracy’s power to interpret laws for itself. That is, rather than require the bureaucracy to seek rulings from federal judges on the interpretation of laws, the US Supreme court in Chevron ruled that federal bureaucrats can decide for themselves how Congress’s laws should be interpreted. Obviously, that created vast new powers for the bureaucracy and also erased the line between the executive branch and the judicial branch. That is, if an administrative agency can interpret laws for itself, then it has taken on the powers allegedly reserved to the judicial branch. Of course, the SCOTUS ruling in Loper is just a small first step in a much larger task of reining in federal administrative power. The administrative state is a long way from being deprived of most of its countless and dangerous prerogatives.  

The danger posed by the vast powers of the administrative state were predictable and predicted. This can be seen  in the 1953 excerpt below, adapted from Garet Garrett’s book The People’s Pottge. Garrett, an insightful essayist of the pro-peace, pre-Buckleyite “Old Right,” outlines how the modern administrative state, created during FDR’s New Deal, destroyed the “separation of powers” that reserved lawmaking authority to the legislative branch. As Garrett shows, America’s administrative state, through its “rulemaking” powers, routinely writes de facto laws and interprets statutes, all free limits once imposed by the written constitution. This is what Garrett calls a “revolution within the form” in which the reality of limited, republican government is abolished while an empty shell—i.e., the text of the US constitution—remains.

In The Grandeur That Was Rome, Stobart says that for a long time after the Republic had become an Empire a stout republican could still believe that he was governed by the Senate; yet little by little as a complete imperial bureaucracy was evolved the Senate sank into insignificance. It was really the bureaucracy of the imperial palace that governed the Roman world and strangled it with good intentions. The growth of the bureaucracy was both symptom and cause of the increasing power of the executive principle. The triumph of the system was the Edict of Prices, issued by Diocletian, fixing prices for every kind of commodity and wages for every kind of work.

The sad fact about the work of the Hoover Commission was that the necessity for Executive Government in all this new magnitude had to be assumed. That is to say, the Commission had no mandate to criticise the extensions of Executive Government in principle or to suggest that any of its activities might be discontinued. The limit of its assignment was to say how they might be organized for greater efficiency. More efficient government; not less government. An efficient bureaucracy, although it may cost less, is of course more dangerous to liberty than a bungling bureaucracy; and you may suppose that any bureaucracy, give it time and experience, will tend to become more efficient.

Aggrandizement of the executive principle of government takes place in several ways, mainly these:

(1) By delegation. That is when the Congress delegates one or more of its Constitutional powers to the President and authorizes him to exercise them. That procedure touched a very high point during the long Roosevelt regime, when an obliging Congress delegated to the President, among other powers, the crucial one of all, namely, power over the public purse, which until then had belonged exclusively to the House of Representatives, where the Constitution put it.

(2) By reinterpretation of the language of the Constitution. That is done by a sympathetic Supreme Court.

(3) By innovation. That is when, in this changing world, the President does things that are not specifically forbidden by the Constitution because the founders never thought of them.

(4) By the appearance in the sphere of Executive Government of what are called administrative agencies, with power to issue rules and regulations that have the force of law. This procedure also touched a high point in the Roosevelt regime. What it spells out is a direct delegation of legislative power by the Congress. These agencies have built up a large body of administrative law which people are obliged to obey. And not only do they make their own laws; they enforce their own laws, acting as prosecutor, jury and judge; and appeal from their decisions to the regular courts is difficult because the regular courts are obliged to take their findings of fact as final. Thus the Constitutional separation of the three governmental powers, namely, the legislative, the executive and the judicial, is entirely lost.

(5) By usurpation. That is when the President wilfully confronts Congress with what in statescraft is called the fait accompli—a thing already done— which Congress cannot repudiate without exposing the American government to the ridicule of nations. It might be, for example, an executive agreement with foreign countries creating an international body to govern trade, in place of the International Trade Organization Treaty which the Senate would probably not have approved. This use of executive agreements, which take effect when the President signs them, in place of treaties, which require a two-thirds vote of the Senate, is a way of by-passing the Senate. It raises a number of fine legal questions which have never been settled. The point is that the Constitution does not specifically forbid the President to enter into executive agreements with foreign nations; it provides only for treaties. In any case, when an executive agreement has been signed the Congress is very loath to humiliate the President before the world by repudiating his signature. Or again, it may be such a thing as going to war in Korea by agreement with the United Nations, without the consent of Congress, or sending troops to join an international army in Europe, by agreement with the North Atlantic Treaty Organization.

(6) Lastly, the powers of Executive Government are bound to increase as the country becomes more and more involved in foreign affairs. This is true because, both traditionally and by the terms of the Constitution, the province of foreign affairs is one that belongs in a very special sense to the President. There he acts with great freedom. It is only the President who can receive foreign ambassadors; it is only the President who can negotiate treaties. The limitations are two. The first one is that when he has signed a treaty it must be approved by a two-thirds vote of the Senate. This obstacle, as we have seen, may sometimes be avoided by signing with foreign countries executive agreements in place of treaties. The second limitation is that when the President appoints ambassadors to foreign countries they must be approved by the Senate; he may and does, nevertheless, send personal representatives on foreign errands. The restraining force of these two limitations is important only in the hands of a strong and hostile Congress. The controlling fact is that both the treaty-making power and the responsibility for conducting the country’s foreign relations belong exclusively to the President; besides which, in both peace and war, he is the Commander-in-Chief of the Armed Forces of the United States. The point of putting that in the Constitution was to make civil authority supreme over the military power.

So much for the rise in the executive power of government to a colossal dimension, all in our own time. It is no longer a coequal power; it is the dominant power in the land, as Empire requires.

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