Quotes about the administrative state
From Ballotpedia
| Administrative State |
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| Five Pillars of the Administrative State |
| • Nondelegation • Judicial deference • Executive control • Procedural rights • Agency dynamics |
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What is the administrative state? How do people define and use this term? What do people say about it, its legitimacy, and how it might be changed or reformed? Ballotpedia has curated the following quotes related to the definition, usage, and theory and practice of the administrative state.
What does the term administrative state mean? What are the characteristics of the administrative state?
| “ | [The administrative state is] the web of agencies and committees that promulgate federal regulations.[1] | ” |
| —Dahlia Lithwick and Mark Joseph Stern, Slate, August 2, 2017 | ||
| “ | [The administrative state is] the president’s most effective tool for exercising power in domestic affairs.[1] | ” |
| —Tony Mills, RealClearPolicy, June 29, 2017 | ||
| “ | [The administrative state is the] creation of a power to bind us with rules... that are not made by Congress.[1] | ” |
| —Philip Hamburger, RealClearPolicy, interview by Tony Mills, July 6, 2017 | ||
| “ | The administrative state is based upon a concentration of all three powers – which Montesquieu thought incompatible with liberty – within a single executive agency. In a fashion that constitutes an abrogation of the Constitution, Congress sets up administrative agencies, empowers them to issue regulations having the force of law, to enforce these regulations, and to judge infractions.[1] | ” |
| —Paul A. Rahe, Ricochet, September 9, 2010 | ||
| “ | The administrative state describes a form of government that uses an extensive professional class to provide oversight over government, the economy and society. It stands in stark contrast to a representative democracy with limited powers and reach.[1] | ” |
| —Chuck DeVore, Forbes, November 27, 2017 | ||
| “ | At present, the vast and bloated executive branch — existing through its alphabet soup of agencies such as the EPA, IRS, DOE, ATF, and the like — intrudes into virtually every aspect of American life. It regulates your workplace, your home, your car, and your kids' school. It’s staffed by legions of bureaucrats who enjoy job security that private-sector employees can only dream of, and it’s granted legal authority by the Supreme Court to interpret its own governing statutes and expand the scope of its own authority. In its own spheres of influence, it often acts as legislator, prosecutor, and judge.[1] | ” |
| —David French, National Review, February 24, 2017 | ||
| “ | The 'administrative state' is not a new or recent phrase; it has been around for several decades, but its nature and depth was only recently more fully appreciated. Once confined chiefly to scholars and policy wonks, the term is now in widespread popular use. The administrative state is not the same thing as bureaucracy, with its connotations of wastefulness, inefficiency, red-tape, and rule-bound rigidity, nor it is limited to the post-New Deal welfare and entitlement state. Its character is best described by Alexis de Tocqueville in his famous chapter on 'What Sort of Despotism Democratic Nations Have to Fear.' After struggling over what to call it, he could do no better than 'soft despotism.'[1] | ” |
| —Steven Hayward, Claremont Review of Books, February 1, 2017 | ||
| “ | The regulatory state is deeply misunderstood. No one denies the importance of federal agencies in formulating the rules that shape the modern economy and civil society. But the regulatory state is not, as its critics maintain, an illegitimate 'Fourth Branch' of government, operating on its own. It is, instead, a vital function of government, which is part of the executive branch (though not within the White House), and is subject to numerous constitutional checks and balances.[1] | ” |
| —Paul Verkuil, RealClearPolicy, October 25, 2016 | ||
| “ | [The administrative or regulatory state is] a massive and enormously complex system of federal regulations that governs literally every aspect of our lives -- from the way we get medical care or even the food we eat, from the design of our cars to where and how we can build anything, whether it be a pond or a new power plant.[1] | ” |
| —William Kovacs, U.S. Chamber of Commerce, April 20, 2016 | ||
| “ | The modern regulatory state is a bipartisan enterprise: During the half-century before President Obama's election, the greatest growth in regulation came under Presidents Richard Nixon and George W. Bush. … The profusion of regulation is primarily an institutional phenomenon, and only incidentally an ideological one. The regulatory agency — developed in the Progressive and New Deal eras and upgraded in the 1970s — has proved to be the most potent institutional innovation in American government since the Constitution.[1] | ” |
| —Christopher DeMuth, National Affairs, Summer 2012 | ||
| “ | Broadly speaking, the term 'administrative state' describes our contemporary situation, in which the authority to make public policy is unlimited, centralized, and delegated to unelected bureaucrats.[1] | ” |
| —Joseph Postell, Heritage Foundation, December 14, 2012 | ||
| “ | It is fitting that we refer to the administrative state as a 'state,' for it has become a sovereign power unto itself, an imperium in imperio regulating virtually every dimension of our lives.[1] | ” |
| —Charles Cooper, National Affairs, Fall 2017 | ||
| “ | Now, when I talk about centralized administration, I’m using [Alexis de] Tocqueville’s term. When I first started writing about the administrative state more than 40 years ago, the term administrative state really was not in use [in American political science]. So I called it, what I was studying, the rise of centralized administration, using Tocqueville’s term. ... [in Tocqueville’s] view, that’s what democracies have to fear as a new form of despotism.[1] | ” |
| —John Marini, RealClearPolicy, interview by Tony Mills, August 3, 2017 | ||
| “ | Most Americans do not fully comprehend the extent to which the modern regulatory and administrative state helps to secure social services that are important safety nets in times of crisis and further the promises of constitutional guarantees long denied in our country’s history. There is federal oversight or involvement in almost every area relevant to modern life, from protecting our health and the environment to regulating the stock market.[1] | ” |
| —Franita Tolson, The Hill, April 2, 2018 | ||
| “ | The 2016 election shocked voters, political commentators, and policymakers, but the administrative state—the vast network of agencies and bureaucratic personnel that operates largely unchecked, making policy decisions that affect millions of Americans—chugged along with uninterrupted purpose.[1] | ” |
| —Inez Feltscher Stepman, City Journal, June 6, 2018 | ||
| “ | A word on terminology at the outset: The term “administrative state” is frequently bandied about, but often carries very different meanings. In promising to deconstruct the administrative state, for instance, the Trump Administration presumably does not mean to include the mechanisms of bureaucratic power that allow the President to oversee agency actions. As used here, the administrative state includes those oversight mechanisms, as well as other core features of national administrative governance: agencies wielding broad discretion through a combination of rulemaking, adjudication, enforcement, and managerial functions; the personnel who perform these activities, from the civil service and professional staff through to political appointees, agency heads, and White House overseers; and the institutional arrangements and issuances that help structure these activities. In short, it includes all the actors and activities involved in fashioning and implementing national regulation and administration — including that which occurs in hybrid forms and spans traditional public-private and nation-state boundaries. An unfortunate implication of invoking the administrative state writ large is that it conveys the idea of a single monolithic entity, whereas in reality national administrative government contains within it tremendous variety, cooperation, and rivalry — a pluralistic dynamic that obtains
within individual agencies as well. The administrative state writ large is nonetheless a helpful analytic conceit here as a stand-in for the archetypal characteristics of national administrative government now under attack.[1] |
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| —Gillian E. Metzger, Harvard Law Review, November 2017 | ||
| “ | This is a concerning statement, as the term 'administrative state' has been used to refer to the federal government’s enforcement of laws that protect health care and the environment, as well as regulations that combat fraud and abuse among large companies.[1] | ” |
| —Dianne Feinstein, Tulsa Public Radio, June 15, 2018[2] | ||
Are there drawbacks to the administrative state? What might be done about these?
| “ | [O]ne of the most constitutionally significant consequences of the creation of the administrative state has been that power which Congress gives away to administrative agencies tends to be power which flows towards the President. The bigger the pool of regulatory power up for grabs, the more serious the shift in the balance of power may become.[1] | ” |
| —Cynthia Farina, How Separation of Powers Protects Individual Liberties, Spring 1989 | ||
| “ | Private choices of individuals and businesses should generally prevail in a free society. Yet in modern times, the expansion of the administrative state has placed undue burdens on the public, impeding economic growth, technological innovation, and consumer choice. This Administration has spearheaded an unprecedented effort to restore appropriate checks on the regulatory state, ensuring that agencies act within the boundaries of the law and in a manner that yields the greatest benefits to the American people while imposing the fewest burdens. [1] | ” |
| —Neomi Rao, Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions, October 2018 | ||
| “ | To the extent that the modern administrative state transfers legislative powers to administrative officers who are not vested with those powers by the people through their Constitution, and who are not elected by the people either directly or indirectly, it violates these cardinal principles of American constitutionalism.[1] | ” |
| —Joseph Postell, Missouri Law Review, Fall 2015 | ||
| “ | The administrative state is often fundamentally at odds with our carefully crafted constitutional order – a legislature that passes laws, an executive that enforces them, and a federal judiciary that says what the law is.
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| —Mark Holden, The Hill, April 5, 2018 | ||
| “ | One of the criticisms of the modern Administrative State is that those relationships that I just outlined… the relationships between the agencies and the president, the Congress and the courts are increasingly mitigated. Most importantly, I think is the reduction of real oversight power of Congress especially when congress isn’t legislating as much, Congress isn’t funding these agencies in the same way it used to, the agencies are increasingly hostile to congressional oversight, Congress has really given away a lot of its own power to oversee these agencies. At the same time, the courts have become increasingly deferential.[1] | ” |
| —Adam White, RealClearPolicy, interview by Tony Mills, June 30, 2017 | ||
| “ | The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution. The original New Dealers were aware, at least to some degree, that their vision of the national government's proper role and structure could not be squared with the written Constitution: The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers. Faced with a choice between the administrative state and the Constitution, the architects of our modern government chose the administrative state, and their choice has stuck.[1] | ” |
| —Gary Lawson, Harvard Law Review, April 1994 | ||
| “ | The administrative state represents a new and pervasive form of rule, and a perversion of constitutional self-government. It has deep theoretical roots that were overlooked for a long time, roots inimical to the Constitution, thereby providing a lesson in the importance of understanding the principles of the Constitution. A chief feature of the administrative state is its relentless centralization, but with a reciprocal effect: its mandates, regulations, distorting funding mechanisms, and elitist professionalism have corrupted our political culture all the way back down to local government. It is the chief reason why Americans increasingly have contempt for government.[1] | ” |
| —Steven Hayward, Claremont Review of Books, February 1, 2017 | ||
| “ | It would be nice if Congress were to pass a separation of powers act and if it were to abolish some ALJs [note: administrative law judges] and switch their power into a few new district court judges. … There aren’t that many of them—you know, for example, at the SEC there are only five administrative law judges, and some of them have been accused of fairly serious bias. So, it would not be very expensive simply to take them out of the budget, create five new district court judges, and see what happens. …
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| —Philip Hamburger, RealClearPolicy, interview by Tony Mills, July 6, 2017 | ||
| “ | [The REINS Act is] a simple but profoundly important bill. It prohibits any significant new agency regulation from taking effect unless it is ratified by each house of Congress. In other words, the Act will make Congress do its job. … But regulatory reform without civil-service reform is incomplete. … In some agencies, an employee is more likely to die than to be fired. The understandable desire to protect civil servants from mass political firings has transformed into virtual tenure. The result is a bureaucracy that knows it can essentially wait out administrations it doesn’t like, resist edicts it opposes, and work inefficiently or incompetently without consequence. … Make federal workers at-will employees like most of the rest of the American workforce — protected from unlawful discrimination but not from their own incompetence. … Finally, Congress should legislatively overrule Chevron v. Natural Resources Defense Council … Courts don’t owe agencies any deference at all. Just as lawmaking is a legislative function, legal interpretation is a judicial function. Let judges judge the law.[1] | ” |
| —David French, National Review, February 24, 2017 | ||
| “ | For those who hold the Constitution of the United States in high regard and who are concerned about the fate of its principles in our contemporary practice of government, the modern state ought to receive significant attention. The reason for this is that the ideas that gave rise to what is today called ‘the administrative state’ are fundamentally at odds with those that gave rise to our Constitution. In fact, the original Progressive-Era architects of the administrative state understood this quite clearly, as they made advocacy of this new approach to government an important part of their direct, open, comprehensive attack on the American Constitution.[1] | ” |
| —Ronald Pestritto, Heritage Foundation, November 20, 2007 | ||
| “ | Traditionally, laws used to only come from two sources: The judiciary (known as common law) and the legislature (known as statutory law). With the rise of various executive and administrative departments, a new subset of laws (aptly known as regulatory law) have emerged over the past few decades that carry the same amount of weight as common and statutory law. However, as an extension of its violation of the Constitution's separation of powers, administrative law could create judiciary procedures for those who violate federal regulations outside the scope of the judicial branch.[1] | ” |
| —Elliott Hamilton, The Daily Wire, February 24, 2017 | ||
| “ | The importance of this controversy to the modern administrative state is clear: if the Constitution forbids Congress from delegating legislative power to administrative agencies, and agencies today exercise legislative power, much (but not all) of the modern administrative state is unconstitutional.[1] | ” |
| —Joseph Postell, Missouri Law Review, Fall 2015 | ||
Are there benefits to the administrative state? Is it legitimate, and why? How might it be further improved or reformed?
| “ | The idea that fairness demands the appointment of judges who reject the administrative state that is so central to the lives of Americans completely misconstrues the role of judges in our legal system. Rather than adopting a narrow-minded conception of the Founders’ Constitution, impervious to the demands and complications of a modern society, judges should defer to agencies because they have the expertise and knowledge to best implement the thousands of rules necessary to implement their statutory mandates. Fundamental fairness ... requires the appointment of fair-minded constitutionalists who recognize that an attack on the administrative state illustrates clear disdain for how government affects and improves the lives of regular Americans every day.[1] | ” |
| —Franita Tolson, The Hill, April 2, 2018 | ||
| “ | Many conservative critics of the modern administrative state remain haunted by the notion that among the fatalities of the constitutional battles of the New Deal was a robust nondelegation doctrine that imposed significant restraints on the delegation of regulatory authority to agencies and commissions. … This narrative is more mythical than historical. Constitutional lawyers in the nineteenth century understood that the lawmaking power could not be delegated out of the legislative bodies to which the sovereign people had entrusted it. But they also thought that this constitutional commitment posed little obstacle to the rise of the administrative state. The creation of agencies and commissions filled with experts who could effectively make the regulatory policy that shaped the economy was no doubt innovative and required significant rethinking of traditional governmental forms. But state and federal judges did not hesitate to give their stamp of approval to those institutional innovations. Traditional constitutional principles were thought to be capacious enough to accommodate the new administrative structures.[1] | ” |
| —Keith E. Whittington and Jason Iuliano, University of Pennsylvania Law Review, 2017 | ||
| “ | It’s true that there are many inconsistent, outmoded, and burdensome rules. To combat this we should encourage agencies to do retrospective review of rules to see whether they should be modified, eliminated, or strengthened. … We should also give the next president reorganization authority. Such authority was granted by Congress as a matter of course until the mid 1980s, but not since — despite the fact that President Obama had some good ideas about how to make agencies more effective by reorganizing them. … Finally — my favorite — we should reform the civil service. … Today, we have the same number of government employees President Kennedy had available over 50 years ago. Since then, the GDP has grown by more than five times and we have created many new agencies with broad missions … Because we do not have sufficient numbers of civil servants, nor the right kind (e.g., technology experts), the regulatory state is increasingly run by contractors, who often cost more and perform inherently governmental decisional roles that jeopardize constitutional values.[1] | ” |
| —Paul Verkuil, RealClearPolicy, October 25, 2016 | ||
| “ | The White House’s insistence that deregulation is liberty enhancing just goes to show how warped today’s political discourse is. Deregulation privileges the worst products, producers, and service providers over consumers, workers, and responsible businesses. All of these individuals benefit from clear, evidence-based regulations enforced by capable and conscientious public servants. Deregulation is inefficient, too, as the government is uniquely positioned to realize economies of scale in regulating for all us.[1] | ” |
| —Jon D. Michaels and Rajesh D. Nayak, Slate, December 22, 2017 | ||
| “ | A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power. Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academics.[1] | ” |
| —Eric A. Posner and Adrian Vermeule, The University of Chicago Law Review, Autumn 2002 | ||
| “ | Moreover, arguments against the delegation of legislative power based on principles of democratic accountability suggest that the problem could be solved, or at least its effects mitigated, by simply rendering administrative rulemaking more accountable. In fact, this has been one of the primary tasks of administrative law over the past fifty years. Put simply, if the delegation of legislative power renders government less accountable, the solution may not be to abandon the delegation of legislative power but to 'democratize' the administrative state through various legal doctrines, granting power to individuals to participate in and influence the administrative process.[1] | ” |
| —Joseph Postell, Missouri Law Review, Fall 2015 | ||
See also
- Administrative state
- Ballotpedia's administrative state coverage
- Administrative State Index
- Scholarly work related to the administrative state
Footnotes
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31 1.32 1.33 1.34 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Tulsa Public Radio, "Oklahoma Supreme Court Justice Wyrick a U.S. Senate Vote Away from Federal Bench," June 15, 2018
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