Unmasking the Administrative State Read online

  UNMASKING

  THE

  ADMINISTRATIVE

  STATE

  The Crisis of American Politics in the Twenty-First Century

  JOHN MARINI

  Edited by Ken Masugi

  New York • London

  © 2019 by The Claremont Institute

  All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Encounter Books, 900 Broadway, Suite 601, New York, New York, 10003.

  First American edition published in 2019 by Encounter Books, an activity of Encounter for Culture and Education, Inc., a nonprofit, tax exempt corporation.

  Encounter Books website address: www.encounterbooks.com

  Manufactured in the United States and printed on acid-free paper. The paper used in this publication meets the minimum requirements of ANSI/NISO Z39.48–1992 (R 1997) (Permanence of Paper).

  FIRST AMERICAN EDITION

  LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

  Names: Marini, John A., author. | Masugi, Ken, editor.

  Title: Unmasking the administrative state : the crisis of American politics in the twenty-first century / by John Marini ; edited By Ken Masugi.

  Description: New York : Encounter Books, [2019] | Includes bibliographical references and index.

  Identifiers: LCCN 2018024187 (print) | LCCN 2018038056 (ebook) | ISBN 9781641770248 (ebook) | ISBN 9781641770231 | ISBN 9781641770231q(hardcover :qalk. paper)

  Subjects: LCSH: Bureaucracy—United States. | Political culture—United States. | United States—Politics and government.

  Classification: LCC JK421 (ebook) | LCC JK421 .M3459 20189 (print) | DDC 320.973—dc23

  LC record available at https://lccn.loc.gov/2018024187

  Interior page design and composition: BooksByBruce.com

  For Nancy and Francesca

  CONTENTS

  PART ONE: The Triumph of the Administrative State Over the Constitution

  1 Hunting the Administrative State

  2 Our Abandoned Constitution

  3 Donald Trump and the American Crisis

  PART TWO: The Administrative State in Practice: Congress as the Enabler

  4 Congress: Reluctant Defender of the Administrative State

  5 State or Constitution? The Political Conditions of Bureaucratic Rule: The Executive, Congress, and the Courts under the Administrative State

  6 Budgets, Separation of Powers, and the Rise of the Administrative State

  7 Progressivism, Immigration, and the Transformation of American Citizenship

  8 Politics, Rhetoric, and Legitimacy: The Role of Bureaucracy in the Watergate Affair

  PART THREE: Theory and History of the Administrative State: The “New Despotism” Replaces Self-Government

  9 Tocqueville’s Centralized Administration and the “New Despotism”

  10 On Harvey Mansfield’s Jefferson Lecture: How to Understand Politics

  11 Roosevelt’s or Reagan’s America? A Time for Choosing

  12 Theories of the Legislature: The Changing Character of the American Congress

  13 Progressivism, the Social Sciences, and the Rational State

  14 Wisdom and Moderation: Leo Strauss’s On Tyranny; Modern Thought and Its “Unmanly Contempt for Politics”

  15 Trump and the Future of American Politics

  Appendix I: Replies to Symposium Participants, “Abandoning the Constitution”

  Appendix II: The Political Conditions of Legislative-Bureaucratic Supremacy

  Notes

  Index

  PART ONE

  THE TRIUMPH OF THE ADMINISTRATIVE STATE OVER THE CONSTITUTION

  By Ken Masugi

  In comments at the Heritage Foundation in October 2016, Justice Clarence Thomas twice mentioned what he termed his first “mentors” on the American Constitution, John Marini and me. We worked for him back in the late 1980s, when he was chairman of the Equal Employment Opportunity Commission. Given the occasion—a celebration of Justice Thomas’s twenty-five years on the Supreme Court and his widespread (and deserved) recognition as its most steadfast and principled conservative—it might be useful for those concerned about constitutionalism and the court to better understand why Thomas might have emphasized two obscure academics, neither lawyers, as his first constitutional guides. In talks about his autobiography he explained that instead of speechwriters, he brought onto his staff political theorists who might discuss with him fundamental political principles of America and the West, such as liberty, natural law, and limited government, which support an originalist understanding of the Constitution.

  Marini is the principal advocate of the notion that the “administrative state” has usurped Congress and the presidency and upset the separation of powers. In sum, the twentieth-century Congress, followed by its most recent successors, has surrendered its powers to the executive branch and been satisfied to pass hollow legislation that confers the real lawmaking powers on the unelected bureaucracy and judiciary. These institutions and, of course, ubiquitous lawyers have all come through the liberal academy—its law schools and political science and policy programs.

  Marini, now a professor at the University of Nevada, Reno, first articulated this radical notion at Claremont Graduate School back in the 1970s and has continued to develop it, by expounding on the basic constitutional concepts of the separation of powers and federalism. He has also applied the notion of the administrative state to policy issues such as the budget, civil rights, and immigration. He has argued that frustration with the administrative state and the policies it encourages may explain the rise of Donald Trump. Marini’s concept of the administrative state is far more radical, persuasive, and significant than similar notions favored by such profound commentators as Christopher DeMuth, Michael Greve, and Philip Hamburger. Another representative of this conservative viewpoint, columnist George Will, recently elaborated, in a 2015 op-ed for the Washington Post, how he believes that Thomas’s objection to the administrative state lies in the issue of the delegation of congressional powers to the executive—an important issue, but in fact it is neither Thomas’s nor Marini’s ultimate concern. Neither Will nor others, such as Senator Ben Sasse, seem to accept that the administrative state represents a change of regime, an actual overthrow of the Constitution of 1787. Constitutional politics therefore requires a rethinking of politics, and thus requires a candidate on the order of Donald Trump, who comes from outside the system created by the administrative state.

  Marini came to then-Chairman Thomas’s attention when Thomas asked me to recommend some others who might also serve as special assistants. I forwarded him a copy of a Marini paper on the administrative state’s overthrow of Congress’s constitutional functions. He returned it to me with bold writing on top: “I must see Marini!!”

  Never having worked in Washington, Marini deduced his notion of an unconstitutional counterstate from diverse intellectual sources, including Aristotle, The Federalist, Lincoln, and Tocqueville, as well as their interpreters, such as Leo Strauss and his students, principally Harry Jaffa. He took account of the radical assaults on constitutional government demanded by Rousseau and, above all, Hegel. The American Progressive progeny of the latter two includes primarily obscure Progressive Era political scientists and journalists; the most famous is President Woodrow Wilson. By working through their thinking, plus that of more recent political scientists, Marini concluded in theory what Thomas, who had once worked as an assistant in the Senate and in the Department of Education, learned through painful practice: republican governm
ent and the rule of law have succumbed to the current political arrangements, which have been devised by and for the benefit of Progressives. Marini has presented many of the foundational ideas for his arguments about the administrative state in three books: The Politics of Budget Control,1 whose bland title masks the revolutionary argument it makes; a coedited book, The Imperial Congress,2 and his coedited book on Progressivism, The Progressive Revolution in Politics and Political Science.3 This book’s selection includes other essays and papers written or delivered over the course of Marini’s career, all of which advance arguments about the development, structure, and effects of the administrative state. The first three essays in the introductory section provide an overview of the book’s major themes, in particular, Marini’s explanation of the administrative state, his argument that appeals to the Constitution may no longer address the political crisis of our time, and his contention that Trump’s 2016 presidential campaign illustrated the administrative state’s effects on the American character.

  In a 2016 speech included in this collection Marini defends a dying constitutionalism against Washington and global elites and notes Trump’s plea for a more assertive citizenship:

  In the modern administrative state, the power of government is unlimited, and the rights of citizens, and the rule of law, itself rests on a precarious ground. For if the government alone creates and confers rights, the constitution can no longer limit the power of government, nor can it protect the civil and religious liberty of its citizens.

  Trump has established his candidacy on the basis of an implicit understanding that America is in the midst of a crisis. Those who oppose him deny the seriousness of the crisis and see Trump himself as the greatest danger.4

  This makes sense of Trump’s political strategy—his assault on the elites of both parties and the media, his disdain for experts and preference for successful practitioners, his mannerisms, and his appeal for a more comprehensive notion of the common good. And it puts his immigration, trade, and national security policies in a new light. A politics of citizenship may not yet be dead. But to see the challenges such a revolutionary endeavor would require points us to the need to understand the administrative state.

  Marini’s prescience on the administrative state illuminates an array of enduring, fundamental questions about America—on contemporary politics, the rise of Progressivism, the significance of Lincoln and the Civil War, and the meaning of the founding of America. The essays assembled here are a series of provocations on such topics and were selected by Marini and me; I have contributed the introductions to each section. We acknowledge the invaluable assistance of Bruno Cortes, Mickey Craig, and Douglas Jeffrey of Hillsdale College in the preparation of the manuscripts. For their abiding influence, John Marini and I thank our teachers, colleagues, and families. This book was made possible by the constant support of President Ryan Williams and the Claremont Institute, Ben Judge, Ben Weingarten, and, above all, Tom Klingenstein.

  1

  Hunting the Administrative State

  I WANT TO THANK the Claremont Institute and Brian Kennedy for this award, the 2011 Salvatori Prize in the American Founding.… I finished my doctoral dissertation, “The Politics of Budget Control,” at Claremont Graduate School the year before the Claremont Institute was established. You could say I have followed the progress of the Institute from its origin. As the Institute grew I began to participate in some of its regular programs. The Institute was committed to a serious study of statesmanship and political philosophy, thereby hoping to reestablish a theoretical ground for an understanding of the principles of the American Founding. I like to think that my scholarship was useful in elucidating some of the problems that had threatened, and even undermined, the principles of our founding, the principles of human equality and liberty.

  My work, begun nearly forty years ago, focused on the problem and danger of centralized administration. At that time, the concept of the administrative state was not yet in common usage. My dissertation was subtitled “An Analysis of the Impact of Centralized Administration on the Separation of Powers.” My research was animated by an awareness that the key institutions of the American government were not functioning in the way they were intended. It seemed as though the growth of the administrative functions of government had undermined the separation of powers and prepared the way for unlimited power in the national institutions.

  The political practice of modern centralized governments, therefore, seemed to tend almost inexorably in the direction of what Tocqueville had called centralized administration. He was convinced that this was the new form of despotism that threatened democratic societies. The obsessive concern with administrative detail would render democratic man incapable of self-government.

  As Tocqueville noted,

  One forgets that it is above all in details that it is dangerous to enslave men. For myself, I would be brought to believe freedom less necessary in great things than in lesser ones if I thought that one could ever be assured of the one without possessing the other.… In vain you will charge these same citizens, whom you have rendered so dependent on the central power, with choosing the representatives of this power from time to time; that use of their free will, so important but so brief and so rare, will not prevent them from losing little by little the faculty of thinking, feeling, and acting by themselves, and thus from gradually falling below the level of humanity.… I add that they will soon become incapable of exercising the great, unique privilege that remains to them.… If one must conduct small affairs in which simple good sense can suffice, they determine that citizens are incapable of it; if it is a question of the government of the whole state, they entrust immense prerogatives to these citizens; they make them alternately the playthings of the sovereign and its masters, more than kings and less than men.… It is in fact difficult to conceive how men who have entirely renounced the habit of directing themselves could succeed at choosing well those who will lead them; and one will not make anyone believe that a liberal, energetic, and wise government can ever issue from the suffrage of a people of servants.1

  Even before the middle of the twentieth century, it was becoming clear that the centralized administrative state led in principle to the universal and homogeneous state. The rational, or administrative, state and its social science, although incapable of recognizing tyranny, had opened up the prospect of the greatest tyranny of all. As Leo Strauss observed, “We are now brought face to face with a tyranny which holds out the threat of becoming, thanks to ‘the conquest of nature’ and in particular human nature, what no earlier tyranny ever became: perpetual and universal.”2

  It seemed that modern tyranny was linked to a rejection of nature and natural right. The political moderation of constitutional democracy was a consequence of a philosophy of government that was grounded in natural reason and the laws of nature. In his defense of constitutionalism, Leo Strauss noted, “it would not be difficult to show that … liberal or constitutional democracy comes closer to what the classics demanded than any alternative that is viable in our age.”3 As Strauss indicated, “According to the classics, the best constitution is a contrivance of reason, i.e., of conscious activity or of planning on the part of an individual or of a few individuals. It is in accordance with nature, or it is a natural order, since it fulfills to the highest degree the requirements of the perfection of human nature, or since its structure imitates the pattern of nature.”4 The most natural and reasonable political order or regime, in the classical sense of the term, is founded upon a political theory of constitutionalism or limited government. The American Constitution, understood in light of the principles of the Declaration of Independence, created such a regime based on modern principles of political thought.

  In its American origins, administration was understood to be subordinate to a political theory of liberal constitutionalism. It had no constitutional authority in a regime that had established a limited government, one that distinguished the public and private sphere, the st
ate and civil society. Moreover, politics and administration remained decentralized; the states and local governments were vibrant centers of political life. Most importantly, the practice of government was defined by its theory; the means were subordinate to the ends of republican government. See the Declaration of Independence. Consequently, administration was thought to be a function of practical reason or prudence, not, as it came to be in the post–Progressive Era, an objective or applied science, the instrumental rationality required in the service of the modern state. However, prudence as a political virtue required the capacity to take into account actual circumstances in light of an end. In political life, as James Madison insisted, the end is justice, or the best regime possible under the conditions that prevail. Constitutional regimes had circumscribed the powers of government, because the ends of politics were limited to the protection of the natural rights of man. That limitation was predicated upon recognition of the fact that the realm of the political does not encompass the whole range of human existence.

  By attempting to understand the theoretical origins of the administrative state, it was necessary to examine the fundamental transformation in American politics brought about by the intellectual and political victory of Progressivism. It revealed a complete break with the American Founding and a total rejection of constitutionalism. It was based upon a philosophy of History. The political thought that laid the foundations of the modern administrative state—and legitimized its political practice—rested on the denial of a natural standard of political right. The understanding of nature, revealed by metaphysical reason, could not remain the ground of political right once the human mind had made the discovery of the rationality of the historical process. Thus, Hegel insisted that “the science of the state is to be nothing other than the endeavor to apprehend and portray the state as something inherently rational.”5 The Progressives in America accepted the Hegelian assumption that “the general dividing line between constitutions is between those that are based on nature and those based on freedom of the will.”6 Consequently, there could be no higher authority than the will of the sovereign people. In short, the modern administrative state was meant to establish the rational or technical means to carry out the will of the people. It required unlimited power in the state, and it was meant to replace constitutionalism or limited government.