RUTHFULLY YOURS

Of all the domestic challenges America faces in government, the administrative state stands preeminent, not only in its size and scope, but in the threat it poses to liberty as such a formidable, fundamentally tyrannical institution. James Madison might as well have been describing the administrative state in Federalist 47, when he wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

A new book, “Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century,” by professors John Marini and Ken Masugi, explores the sprawling federal bureaucracy’s philosophical origins, chronicles its evolution, and provides a compelling argument that the Trump administration is attempting to curtail it. (Disclosure: The authors consulted with me for this book project and I received payment for my work.)

Marini and Masugi have played an outsized but underappreciated role in American political thought, focusing on the theory and practice of the mammoth, ever-ballooning, arguably unconstitutional––and certainly anti-constitutional––bureaucratic morass of which “Unmasking the Administrative State” serves an essential part.

The Fourth Branch of Government

The administrative state is the living, breathing manifestation of progressivism’s “long march” through the institutions. It is, in effect, a fourth branch of government that usurps and combines the powers of the others, leading them to collude in the scheme, in the process corroding themselves.

It consists of hundreds of thousands of unelected, unaccountable bureaucrats promulgating millions of pages worth of rules and regulations (read: laws), who––no matter how technically competent and virtuous the drafters might be––represent an affront to republican government and freedom itself. At a micro level, it creates the perverse circumstance in which an individual might find him- or herself up against a single agency playing legislator, regulator, judge, jury, and executioner all at once.

In short, the administrative state unmoors the state from the people it exists to represent. In its place, we get a government in which powers are unlawfully delegated from the legislative branch to executive agencies, checks and balances collapse, separated powers become blurred, and fundamental principles of justice are shunted aside. Marini suggests that this transformation represents nothing short of a regime change, and describes how we got here from both a theoretical and practical perspective.

A short summary of his view will not do it justice, but a couple of passages are poignant. Marini writes:

If a written constitution is to have any meaning, it must have a rational or theoretical ground that distinguishes it from government. 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. In that case, government itself will determine the conditions of the social compact and become the arbiter of the rights of individuals. When that transformation occurred, as it did in the twentieth century, the sovereignty of the people, established by the Constitution, was replaced by the sovereignty of government, understood in terms of the modern concept of the rational or administrative state.

What Marini describes is nothing less than the progressive inversion of our entire political system. Marini claims “rights and freedom were not natural or individual but social and dependent on historical development,” and “[p]olitical life and religion…vanish to enable the perfecting of economic and social conditions through the establishment of new social sciences that could bring about an uncoerced rational society,” culminating in the “rule of organized intelligence, or bureaucracy.”

He adds: “After nearly a half century of its growth, the bureaucracy has revealed itself to be the conservative defender of liberalism, the keystone of the rational state. Once established, the bureaucracy, and the political, economic, and social forces beholden to it, have sought to progressively replace politics by substituting administrative rulemaking for general lawmaking, and rule by expert in place of that of elected official. In practice, this means that the political rule of law must increasingly give way to executive or administrative discretion.”

Governed Without Consent

The practical effect of the advent of the administrative state by progressives in the early 20th century, expanded under presidents Franklin Delano Roosevelt and Lyndon Baines Johnson, has been not only an ever-bigger government, but a government divorced from the people it exists to represent. We are increasingly governed without our consent. What of the branches of government that exist to represent us, and protect our rights?

As Marini puts it, Congress, “became, primarily, an administrative oversight body.” He continues, “To the extent that Congress is still tempted to make laws, it does so primarily on behalf of the expansion of the administrative state.” In other words, the legislative branch willfully gave up its primary power, to legislate, potentially unlawfully delegating power to federal agencies or punting it to the courts. Talk about a dereliction of duty.

Meanwhile, we the people were definitionally moved further away from the policymaking apparatus. Deferring to experts in the bureaucracy in and of itself should have been a big red flag for the American people: Should the federal government be regulating every area of public life, requiring highly specialized technical expertise, or better for such complex matters to be left to the people?

As for the judiciary, Marini writes that it: “had to be transformed. The bureaucracy has no constitutional authority, but it was given enormous power by the political branches. In the administrative state, the courts have been required to enter the policymaking process, as the final arbiters in the adjudication of cases arising in the administrative process. As a result, they have become fundamental players in the political and policymaking process.” Once the die was cast, naturally the judicial branch had to play a role in the administrative state scheme.

He concludes: “The administrative state reflects a concern with administrative detail rather than principle, rulemaking rather than lawmaking, and the attempt to placate every private interest rather than the obligation to pursue a common good. In these ways, it subverts the aspiration for the fundamental ideal of government, that which makes human community possible: the desire for justice.”

The Unlikely Challenger: President Trump

President Donald Trump is not the primary subject of this book, but he is our nation’s unlikely preeminent administrative state unmasker. In spite of, or perhaps because of, his focus on practicality over philosophy, and his elevation of the forgotten man over the reflexively progressive political establishment during the 2016 presidential campaign, he set out to deconstruct the administrative state. While the elites mocked and derided him, they also apparently took his threat to the privileges and prerogatives conferred upon them by the administrative state regime more seriously than they did the threat of any of his predecessors.

It was not just that President Trump sought to deregulate, or prescribe a set of policies anathema to our bureaucracy. Trump was deemed an existential threat to the power and prestige of our betters. The result has been an unprecedented backlash that has brought the dangers of an out-of-control bureaucracy into stark relief. In seeking to deconstruct the administrative state, the administrative state has sought to deconstruct his administration and, with it, a restoration of a modicum of constitutional rule.

There has been much sabotage, from rogue justices issuing dubious universal injunctions on even more dubious grounds, to subordinates in federal agencies and up to cabinet-level officials literally refusing to do their jobs, pulling documents from the president’s desk, leaking the most sensitive of communications, and writing missives undermining the president supposedly to “protect the country”––the nearly 63 million people who voted for him be damned.

But in no area has the resistance been stronger than in the Deep State––the intelligence community and law enforcement realm––which is a particularly chilling development because it is the stuff of police states and banana republics. The politicization and weaponization of bureaucracies that exist to protect American life and limb is disastrous on every level.

The Deep State Disaster

One need not go through all the particulars to see that the Deep State, part of the executive branch, has run amok in seeking to undermine and ultimately destroy the executive. The list of such efforts is exhaustive.

Here is just a small sampling of the Deep State’s chicanery: Spying and siccing informants on the Trump campaign; perpetrating a fraud on the Foreign Intelligence Surveillance Act court in service of the former; illegal leaks on the most sensitive of subjects on top of all manner of additional lawless and unethical behavior; the creation of a seemingly omnipotent special counsel comprised almost uniformly of haters of the primary investigative target, in violation of Justice Department rules and based primarily on (i) salacious and unverified political opposition research collected from a foreign source who himself collected its most sordid elements from other adversary foreign sources disseminated generously throughout the Deep State, (ii) the firing of a president’s subordinate blessed by the Justice Department, and (iii) the president’s policy decisions.

The Deep State has become a branch within a branch. It is one thing for Congress to delegate power to executive agencies. It is another for those agencies to dominate the executive. The special counsel holds power above a duly elected president. More than two years into what appears to be a conspiracy to propagate the narrative of a Russia collusion conspiracy, it increasingly seems to be claiming scalps to justify its existence. And one cannot question the special counsel or declassify documents that might illustrate its illegitimacy because to do so would be to obstruct it. Quite an insurance policy.

The reality: There is no evidence of underlying treasonous Trump-Russia collusion. No matter. The administrative state continues its work in defense of itself and against the president under whose prosecutorial discretion it ultimately serves. The goal is not just to punish Trump, but to criminalize Trumpism and, with it, anyone who would dare deign to deconstruct the administrative state.

Thwarting the Executive

Those who have sought to subvert and sideline the president within administrative institutions have more than crossed a red line. They are violating the consent of the governed. They are serving as a de facto check-and-balance without any such authority. They are eviscerating the last vestiges of constitutional government.

To describe such efforts as an attempted coup would be apt under Marini’s framework: Trump represented a potential regime change––closer to what the Founders envisioned––and the regime in power is doing everything it can to thwart him.

It is not the Deep State’s job to police a president because it disagrees with or is threatened by his policies. That power falls to the Congress as representatives of the people, and ultimately to the people themselves. The attempt to “Resist” by those tasked with ensuring our national security and conducting foreign affairs (areas in which the executive branch has significant latitude) represents an administrative state-driven constitutional crisis.

But then, the administrative state itself represents a slow-motion, rolling, constitutional crisis. The Deep State is its apotheosis.