The Anti-Constitutional Deep State
How Our Administrative State Undermines The Constitution
Scholar and political theorist John Marini’s new book addresses the foundational constitutional problem of our age—how to rein in America’s unaccountable federal bureaucracy.
By William Turton – February 8, 2019
When Justice Clarence Thomas served as chairman of the Equal Employment Opportunity Commission during the Reagan administration, he brought two political theorists, John Marini and Ken Masugi, onto his staff. As close advisors to Thomas, they spent much time discussing the political principles of the Declaration of Independence and the Constitution and their application to contemporary American politics. These principles of natural rights, the separation of powers, and constitutionally limited government have served as the cornerstone of Thomas’s judicial philosophy throughout his nearly three decades on the Supreme Court.
Marini’s new book, which is edited by Masugi, is Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century. The collection of essays provides a critical analysis of how the administrative state has undermined America’s constitutional order and threatens to replace self-government with the rule of unaccountable experts.
In the chapters of this book, he argues that the administrative state—the centralized institutions of the federal bureaucracy—has produced a regime change in America. It has overthrown the Constitution and seeks to replace it with the unlimited authority of a bureaucracy ruled by an intellectual elite. In practice, the administrative state, not Congress, now exercises the power of making the laws under which we live.
Rejecting the Founders
Marini writes that “constitutionalism as a theoretical doctrine is no longer meaningful in our politics…. When the principles that establish the legitimacy of the constitution are understood to be changeable, are forgotten, or are denied, the constitution can no longer impose limits on the power of government.”
As a number of scholars have pointed out, the Progressives of the late nineteenth and early twentieth century rejected the concept of natural rights and the idea that government is a creation of a social compact among the people. In the view of the Founders, the people establish government for the purpose of protecting their natural rights, and the structure of the Constitution, by separating power between the branches, seeks to preserve this liberty from arbitrary rule.
As president, Franklin Roosevelt successfully realized the vision of the earlier Progressives by establishing a new understanding of rights as the gift of government that would require government to take on a new role as the organizing force of society. He proclaimed a new understanding of the social contract in which “rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights.”
As Marini notes, “It was in the cause of this new understanding of freedom that America’s constitutional form of limited government was gradually replaced—beginning with the New Deal and culminating in the late 1960s and 1970s—by an administrative or welfare state.” Roosevelt’s presidency inaugurated the founding of the modern administrative state, which would subsequently secure its central position as the cornerstone of a new regime of American government with the advent of Lyndon B. Johnson’s Great Society.
Congress Empowers the Administrative State
Article I of the Constitution declares, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The people, in establishing the Constitution, delegated the power to make laws to Congress alone. The non-delegation doctrine, which holds that the legislature cannot delegate its legislative powers to any other hands, is a logical conclusion of the Founders’ understanding of government by consent of the governed. The people delegated legislative authority specifically to Congress. It cannot turn around and pass that authority to any other set of hands.
As the political philosopher John Locke wrote in 1690, the legislature holds authority “only to make laws, and not to make legislators.” The administrative state has no constitutional authority. At most, all administrative agencies would fall within the purview of the executive branch and be answerable to the president in his constitutional role of enforcing the nation’s laws. How, then, did this vast bureaucracy come to wield such sweeping powers to make the rules that govern us?
Over the course of the past century, Congress abandoned its legislative function and delegated its legislative powers to the unelected bureaucracy. It still passed resolutions that were officially called laws, but have generally taken the form of sweeping grants of authority empowering agencies to craft rules and fill in the details of unfinished legislation.
The Affordable Care Act is an excellent example of this. On its face, the ACA appeared to be a law Congress passed to regulate health care and insurance. However, Marini observes, the ACA “is not a law in the constitutional sense. It makes sense only within the context of an administrative state.”
By leaving the law unfinished and incorporating broad delegations of power within the statute, Congress “established the legal requirements necessary to provide the administrative apparatus with the legal authority to formulate the rules that would govern health care nationwide.” Instead of fulfilling its traditional lawmaking function, Congress delegated the authority to make rules and regulations to the agencies, who will rule by virtue of their supposed neutrality and technical expertise.
The unconstitutional delegation of the legislative power to the administrative state shifts the key decisions on policy from the halls of Congress to the conference rooms of the bureaucracy. Accordingly, the administrative state has taken on an increasingly central role in our politics.
In just the past few years, the U.S. Department of Health and Human Services sought to force religious organizations to provide birth control—despite their deeply held moral objections to some or all of the birth control methods—to their employees or face steep fines. The Environmental Protection Agency attempted to extend its regulatory jurisdiction over private land by reinterpreting the Clean Water Act to cover ponds and wet meadows. The federal government has even been forbidden to ask about citizenship in the 2020 Census because career bureaucrats opposed the decision by Secretary of Commerce Wilbur Ross.
Constitutional Government vs. the Administrative State
The administrative state is not simply unconstitutional; it is anti-constitutional. In its structure and operation, it represents a system of government that cannot be reconciled with constitutional government. In effect, the modern administrative state destroys the separation of powers by uniting all the powers of government in its hands.
Thanks to congressional delegation of legislative power and the judiciary’s acquiescence in the growth of the administrative state, agencies craft rules and regulations in what amounts to an alternative legislative process. They enforce these rules as they see fit, and the judiciary defers to the agency’s interpretation of its own rules in adjudication.
The administrative state, for all intents and purposes, has become the central institution of national authority. Furthermore, government by administration has played a major role in undermining the conditions of self-government. According to Marini, “In attempting to provide administrative solutions to social, economic, and political problems, it [the administrative state] undercut or destroyed those institutions within civil society that had established the foundations of self-government, including the family and the church.”
The struggle between the defenders of the administrative state and those who challenge its claim to rule forms the central battleground of political conflict in America today. The administrative state institutionalized its authority in the mid-1960s, but it produced a backlash from citizens and political leaders who deny its legitimacy.
In several of his essays, Marini examines several crucial flashpoints in the ongoing battle between the administrative state and its defenders and those who challenge its rule (particularly Richard Nixon’s attempt to reorganize the federal bureaucracy and Ronald Reagan’s revival of constitutionalism). He argues that modern American politics, beginning in the late 1960s, can be understood as a long-running contest between the defenders of the Constitution and the partisans of the administrative state:
The administrative state, with the blessing of Congress, the presidency, and the Supreme Court, grew dramatically in the last third of the twentieth century, and it continues to expand in the twenty-first. Despite its expansion under both parties, it has not attained legitimacy within the American constitutional order. The Constitution itself remains the source of legitimacy for those in and out of government who are opposed to the administrative state. Until the administrative state becomes legitimized, or constitutionalism delegitimized, the ongoing contentiousness between the political branches of government, the parties, and within the electorate, concerning the desirability of expansion, limitation, or diminution of the size and scope of the federal government, seems almost inevitable.
In the book’s concluding essay, titled “Trump and the Future of American Politics,” Marini contends that Trump’s election “could be seen as a repudiation of those past progressive policies that had dominated both parties in domestic and foreign affairs since the end of the Cold War.” His campaign directly challenged the authority of the Washington establishment and its organized interest groups by reasserting the sovereignty of the people and the importance of the national interest against an administrative state that rules on behalf of these interest groups.
As such, the Trump presidency has provided a long-awaited opportunity to push against the rule of the administrative state and begin the process of restoring constitutional government. Thus far, the signs have been promising: the appointment of judges who interpret the Constitution faithfully and uphold the separation of powers, the rollback of an intrusive regulatory regime that encroached upon individual rights, a renewed emphasis on national sovereignty in foreign affairs and immigration. The outcome of this struggle is not yet certain, but it will not end with Trump.
The tall task of re-establishing constitutional government will require a persistent political constituency that understands the nature of the administrative state’s threat to self-government and is committed to reversing its power. Marini’s book—the result of many years of thinking and writing about these issues—is an essential resource for anyone who wishes to understand the nature and danger of the administrative state.
William Turton is a graduate student at the Van Andel School of Statesmanship at Hillsdale College. He is pursuing a master’s degree in American politics and political philosophy, and his interests include the American founding, Congress, and the separation of powers.