Thursday, January 21, 2021

Two Important Reads Re The Administrative State

"Administrative State" is the term that political scientists use to describe the bureaucratized government that we have, in which the unelected permanent bureaucracy--lodged in the Executive Branch--increasingly takes over the functions of the Legislative Branch, which in the constitutional scheme of things was supposed to represent We The People. The result of the empowerment of supposed "experts" in the permanent bureaucracy is that neither Congress nor even presidents or cabinets secretaries are able to exercise true authority over the government. Never, perhaps, in the last hundred and more odd years of the Administrative State's development in America has the full power of the Administrative State--in opposition to all three constitutional branches of government--been more apparent than during the four years of the Trump administration.

The two scholars most associated with the critique of the Administrative State are John Marini, a political science professor, and Philip Hamburger, a law professor.

Marini's best known book on the subject is Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century. Writing from a more strictly legal standpoint, Hamburger's major work is Is Administrative Law Unlawful?

However, if you're short of time, I'm linking two articles--actually, an interview with Marini and a review of his book--that will give you a very clear idea of what's at stake in all this.

The review of Marini's book can be found here:

Have the American People Irrevocably Ceded Control of Their Government to the Modern Administrative State?

I'll only excerpt a few paragraphs from the review. I chose these paragraphs because they discuss what I've regularly referenced--the influence of Hegelian philosophy over the American Progressive Movement, which includes (among names most will recognize) John Dewey and Woodrow Wilson:

Marini traces the establishment of the modern administrative state in the United States, in large part, back to President Franklin D. Roosevelt’s “reinterpretation” of the Constitution when his administration, supported by Congress, launched the New Deal programs.[11] In a September 1932 speech, President Roosevelt asserted that the relationship of the government to the people was essentially contractual—“rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights.”[12] That formulation enabled the government to determine the conditions of a new social compact, which diminished the authority of the Constitution and undermined popular sovereignty.[13] This new understanding of the government as the “arbiter” of both economic and political rights enabled the government to place the expertise of the bureaucracy in charge of policymaking, thereby replacing the “moral authority of the people’s compact.”[14]

Roosevelt’s political triumph had been preceded by decades of Progressive thinking that posited that rights were not natural or individual in origin, but instead were based in societal norms.[15] The noted philosopher John Dewey criticized the founders for their belief that liberty is derived from natural rights, arguing that their understandings were “historically conditioned” and did not take into account the idea of “historic relativity.”[16] In 1917, the eminent legal scholar Roscoe Pound observed that modern legal philosophy asked for “a definite, deliberate, juristic program as part of an intelligent social program, and expects that program to take account of the maximum of human demands and to strive to secure the maximum of human wants.”[17]

American Progressivism, Marini contends, was the “political manifestation of a theoretical revolution in political thought,” derived ultimately from a “philosophy of History.”[18] The German philosopher Immanuel Kant argued that the moral law could not be established on natural law or natural rights.[19] Progressive intellectuals like Woodrow Wilson understood “natural laws only in terms of science, not ethics or morality,” and they concluded that the founders’ reliance on natural law principles was obsolete and had been superseded by scientific progress.[20] The Progressives, influenced by German philosopher Georg Wilhelm Friedrich Hegel, also concluded that the modern state would become the vehicle for progress, with politics and religion replaced by the rational science of economics and society.[21] American Progressive political scientists believed, like their European counterparts, in a theory of social justice under which the government would provide political solutions to contemporary social and economic problems.[22]

That should ring a few bells, I hope. The rest of the review then contrasts these Progressive views--which led directly to the enablement of a professional class of governing 'experts' who are largely unaccountable--with the views of the Founding Fathers. It's a most illuminating discussion.

The interview with Marini can be found in transcript here: 

Unmasking the Administrative State

John Marini on the Real Crisis of American Politics

I think you'll find the discussion--it's a true back and forth between the interviewer (Bob Zadek) and Marini--quite accessible, especially since the discussion takes place in the context of the Trump administration and Trump's relationship to the Administrative State. With that in mind, I'll simply quote Marini's concluding response, which is an interesting appraisal of Trump coming from an academic. What Marini is saying about Trump is that Trump envisioned himself as a politician in the broadest sense--as the representative of We The People in ministering to the health of the body politic, the constitutional order. While Trump presented himself to the citizenry as someone with a policy agenda, he was not presenting himself as simply a manager to preside over the bureacracy, to help government run more efficiently. His was a true political vision of American Greatness:

Donald Trump: A Citizen President

I believe that's a fair assessment. It also explains the Trumpean appeal--voters saw that he was looking out for the common good because he continually articulated, in readily understandable terms, what he saw as the common good. And, unlike most elected officials, he followed through on that vision to the best of his ability.

This is a difference that I think the American people will not soon forget. The American people understand the difference between a Trump and a power elite that sees their first day priority as putting American energy workers out of their jobs and empowering boys who want to play at being girls. For starters.


  1. Wow. We have to marvel at the expression 'the common good' since we so rarely hear it these days. That is simply brilliant. Going forward every incoming Cabinet secretary should have to answer the question of what programs are 'you' going to put in place that will contribute to the common good?

    "The American people understand the difference between a Trump and a power elite that sees their first day priority as putting American energy workers out of their jobs and empowering boys who want to play at being girls. For starters."

    For starters, as you pointed out, Mark. Mr. or Ms. Cabinet candidate, please tell us how allowing biological men to participate in sports designed for biological women is BETTER for the common good, than allowing the current state of women's sports to continue?

  2. This explains why both parties hated and worked together to successfully destroy the tea party.

  3. I didn’t have time to read as today is alligator day in our household. But it appears a step was removed. The American people voted for persons they believed would represent them and stand strong on their behalf. The persons they elected have - with few exceptions - failed them Just a bunch of squishes and grifters. If those representatives won’t stand up for their own Constitutional power, they fail all of those who voted for them.

  4. This may be of interest:

    A brief explanation of the cathedral
    An oligarchy inherently converges on ideas that justify the use of power.

  5. And this better explains why I will not vote Republican.

    It just does not matter.

    1. This is where we are. I truly did not expect it this soon. I though it might be when I was 70, I am 50, but not now. Here it is, though.

      It is what it is to use a tired cliche. What are we going to do going forward?

      I have voted Republican almost exclusively since the 1990s and all that happens is we march left in some form or fashion.

      On under 3M_TA3, I vociferously advocated for W and Cheney when the common thought was to jettison Cheney.

      I am much of the problem. I voted and believed that vote would matter, but now I see it does not.

      The administrative state is real and is inline with the UniParty. The result going forward will be bad.

      And I feel sad for my children over this.

  6. I had naive hopes that eight years of Trump could put into place the machinery to deconstruct the administrative state. Defund it, decentralize it, apply the 10th amendment, etc. We now see that Leviathan is far larger and deeper than any of us thought. I'm getting the sickening feeling that the only real solution is really to burn it all down. I can still hope I'm wrong.

    1. I have the same view and also hope we're both wrong.

    2. I think you may have been right, but he didn't get eight years.

      But in four years he was able to demonstrate the viability of America first doctrine, to say nothing about his foreign policy successes.

  7. A very good read Mark. Marini's view is logical and makes sense. As for those "professional class governing experts"... liberal Judges immediately came to my mind...

  8. Not Precisely on Topic:

    I read this because I was surprised at the 46% trust in media. Come to find out that's made up almost entirely of D's. Nothingburger; then I ran into this at the bottom of the post:

    CEOs (a/k/a the fourth branch of government) are at or near the top of Edelman’s list of trusted institutions.

    By the numbers: 61% of Trump voters say that they trust their employer’s CEO. That compares to just 28% who trust government leaders, and a mere 21% who trust journalists.

    61%? CEO's? These would be the CEO's that are requiring CRT struggle sessions? Banning My Pillow from their stores? Contributing millions to BLM, SPLC, PP, Tides Foundation, and Clinton Foundation? Blackballing employment based upon association with the Trump Campaign? Blackballing customers due to political association? Prioritizing Green and Trans Wokeness over stockholder dividends/customer loyalty?
    61%? Trump voters? Wow.
    Tom S.

  9. How many people are:

    1. Afraid to answer surveys
    2. Lie, due to being afraid of their answer being used against them
    3. And who you choose to call can have a huge impact on survey numbers
    4. Phrasing of questions can have a huge impact

    And it’s probably worse among actual voters.

    >I read this because I was surprised at the 46% trust
    > in media.

  10. I read Marini’s book in 2019 when it was released. Initially, it was a hard-read since I hadn’t viewed the influence of the bureaucratic state to this extreme or its constitutional abuse. Slowly I understood what Marini and Ken Masugi (who edited the book) were explaining the weakness of the constitution and how it was manipulated in the early 1900s and expanded.
    Chapter 3 is entitled “Donald Trump and the American Crisis” where he delineates what Trump brings to a “common good established by a government that protests the rights of its citizens in a constitutional manner…”, but “…those who have a stake in preserving Washington as it now exists are his enemies, and the public that is drawn to him is fickle.” Now we have seen it played out.
    Chapter 3 is their only discussion of Trump. The book discusses the historical, handling, and corrections needed to restore and maintain the constitution. Read it with a cup of coffee.
    May God Bless America!

    1. Thanks, AL. I will say this re Marini--the Trump electorate turned out not to be so fickle in the end: 74 million votes?

    2. Point of Order: probably closer to 80-85 million votes, Mark.