A Constitutional Administrative State?
All governments must collect taxes, punish criminals, enforce building codes, and license certain professions. The real debate is over how the administrative state acts and under what powers. What would a constitutional administrative state look like today?
The mere mention of bureaucracy makes many people’s eyes glaze over. Even attempts to gin up interest by using scary sounding terms like the “deep state” have yet to hold the public’s attention for very long. Yet bureaucratic power is the source of heated debate among politicians, intellectuals, and scholars. For liberals, the administrative state is the positive force by which modern government remolds society to make it more democratic and egalitarian. For conservatives, it elicits concerns about an unconstitutional “fourth branch” of government that threatens to make a mockery of liberty and self-government.
In a rich and detailed new book, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, political scientist Joseph Postell analyzes the evolution of the administrative state and assesses its constitutional standing. He argues that there is an unresolved tension between modern bureaucratic power and American constitutionalism. To make this case, he traces the development of administrative power in the American political system from the founding to the present. He seeks to show that throughout the nineteenth century the bureaucracy was held in check by constitutional constraints. It was only after the Progressives of the early twentieth century developed new modes of bureaucratic power (which largely had to wait until the New Deal to be implemented) that the administrative state exceeded constitutional barriers. Today, the bureaucracy is largely based not on constitutional but on progressive principles.
Postell succeeds in telling what is admittedly dense and complex history. Administrative law tempts scholars into either vague abstraction (in an effort to cover a wide-range of government activities) or mind-numbing detail (in an effort to get to the core of agency decisions). Mercifully, Postell avoids both temptations, steering a middle course that is accessible and readable. Although he leaves some important questions unanswered, his book is a good foundation for more productive conversations about the contemporary administrative state
Daniel DiSalvo is a senior fellow at the Manhattan Institute and associate professor of political science at the City College Of New York (CUNY).
This piece originally appeared in Public Discourse