One of the most long-standing complaints of American conservatives concerns the emergence, growth, and spreading mandates of the so-called “administrative state.” The Trump administration framed this in a typically crude way as the malign “deep state” of unelected bureaucrats doing the bidding of shadowy elites against the interests of ordinary Americans. Trump and his advisors like Steve Bannon vowed that they would smash the deep state as their first order of business.
This latest salvo simply echoes conservative critiques that multiplied as the New Deal got under way in the 1930s and created the plethora of administrative agencies like the National Labor Relations Board and the Securities and Exchange Commission. A variety of charges were laid against these federal agencies, beginning with the idea that the U.S. Constitution did not permit delegation of authority from Congress to unelected bureaucrats, and that these agencies violated the Constitution’s principle of separated powers. One of the drivers of Franklin Roosevelt’s court-packing effort was the resistance of the Supreme Court at the time to these expansions of executive power within the federal government.
Over time, conservatives came to terms with the need for an administrative state. Modern governments do a host of specialized activities, from forecasting the weather, putting probes on Mars, managing the money supply, combating pandemics, regulating air traffic, and compiling unemployment statistics. The idea that these functions—all highly desired by voters—could be accomplished without delegation to expert agencies is, simply put, ridiculous. As the country got through the Great Depression and Second World War guided by an increasingly powerful federal government, a bipartisan consensus emerged that the administrative state was here to stay, but needed to be strictly controlled by the courts and by Congress. It was accepted that agencies would need to write new quasi-legislative rules in response to fast-changing circumstances, but could do so only under clearly specified conditions.
This was codified in the landmark 1946 Administrative Procedure Act (APA), which required agencies to post rule changes in the Federal Register and accept notice and comment from the general public before proceeding. The APA also created a layer of administrative law judges who could hear appeals against agency decisions, providing ex post review in addition to ex ante procedures. The 1970s and 1980s saw a further explosion of administrative agencies like the Environment Protection Agency and the Occupational Safety and Health Administration, and a mountain of case law (like the Supreme Court’s 1982 Chevron Deference ruling) defining the ways in which they were to be controlled and limited by the other branches.
Ever since then, American politics has been caught up in the struggle between progressives who want to expand state regulation, and conservatives who want to limit it or roll it back. Progressives often found that they could not get legislatures on either a federal or state level to support their initiatives, from voting rights to the legalization of abortion to gay marriage. These measures could, however, be enacted by some combination of courts and bureaucracies. Courts therefore acted not just as a check on new bureaucratic rule-making, but often as a partner that could legitimate agency decisions.
It is a commonplace observation that the administrative systems of most European liberal democracies regulate far more than their American counterparts, given the anti-statist proclivities of American political culture. These systems are staffed by powerful mandarins who perform functions (like preparing annual budgets) that in America are the clear domain of Congress. There is one area, however, where American bureaucracy has been far more expansive in its reach and regulation than in other democracies, and that is in the broad area of civil rights.
The reasons for this are straightforward: since before its Founding, America had to deal with the problem of race in a way that few other democracies did. The initial breakthroughs in dismantling legal segregation could not be accomplished legislatively because voters in the South supported it. So desegregation depended on court actions like Brown v. Board of Education. While such decisions were followed up by statutes like the Civil Rights and Voting Rights Acts, the pattern set for protecting the rights of racial minorities was applied to women, gays and lesbians, and other marginalized groups.
It seems to me that complaints about the administrative state are vastly overblown with regard to most forms of economic regulation. This is because the business interests affected have the power and money to push back, and have done so vigorously over past decades. Whether we’ve reached the right balance between economic growth and, say, environmental concerns is complicated and changes between Democratic and Republican administrations. The same is not the case, however, in the area of civil rights, where advocates for the expansion of those rights have held the moral high ground. This is the backdrop to the vast expansion of the writ of Title IX of the Education Amendments of 1972, which will be the subject (barring something big happening on the Ukraine front) of my next post.
Image: President William McKinley measures Uncle Sam for larger clothing, https://loc.gov/pictures/resource/cph.3g02158/
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