'Administrative State is THE Leading Threat to Civil Liberties of Our Era.'

Professor of Law at Columbia University Law School Philip Hamburger discusses the rise of the administrative state and what, if anything, can be done to reduce its power.

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"The administrative state is the leading threat to civil liberties of our era," says Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the recent books, Is Administrative Law Unlawful? (2015) and The Administrative Threat (2017). "We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts, but we have within that an administrative state, a state that acts really by mere command and not through law." Hamburger argues that by reducing the role of elected officials to set policy, the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power.

Before he left the Trump administration, former White House Chief Strategist Steve Bannon famously vowed to "deconstruct" the administrative state—the collection of bureaucrats, agencies, and unelected rule-making bodies who decrees and diktats govern more and more of our lives.

And many of the president's picks at places such as the FCC, the FDA, the EPA, and the Department of Education seem to be doing just that: cutting regulations and policies that come not directly from Congress but from administrators who decide, say, that the FCC has the ability to regulate the internet as a public utility, and that so-called net neutrality is a good idea. Trump's appointee to the Supreme Court, Neil Gorsuch, is widely understood to be a critic of the administrative and some of best-known ruling challenged the validity of rules laid out by federal bureaucracies.

Reason's Nick Gillespie sat down with Hamburger to discuss why the administrative state is unconstitutional, and what, if anything, can be done reduce its power.

Music "Integration Blues" by Javolenus

[MegaTeeruk]

The government that governs best governs the least.

[SigmundS]

People in government have their own interests. Administrative agencies are somewhat unique because of their rule making ability, but all people in government want government to expand and the legislature can't write the rules. Blaming ruling making is like blaming children for running wild when parents abandon them -- it's inevitable. The only solution is to make government smaller, much smaller.

[KW-mzpn]

He is absolutely correct. The board of nursing has destroyed careers.

[KTS_]

The biggest problem is public sector employees exerting (what I’ve coined as) “CONTROL WITHOUT (PERSONAL) LIABILITY.” I propose a doctrine to help curb/ keep administrative bureaucrats/ public sector employees in check that includes:
1. Demonstrating “rough proportionality” between the control and regulations they exert and professional/ personal liability they take on.

[soapbxprod]

Thank you, Nick- this is pure gold! I've never before heard of Philip Hamburger- he's truly brilliant, as are YOU! Viva Rothbard.

[NNCCCC]

Philip Hamburger is a national treasure. Be sure to read his magnificent opus "Law and Judicial Duty"

[garyhunt]

When Congress was debating the Administrative Procedure Act of 1946, Representative Pat McCarran (a Democrat from Nevada) submitted the Bill, who also gave us some insight into its purpose, when he said (from the Congressional Record, March 12, 1946):
We have set up a fourth order in the tripartite plan of government which was initiated by the founding fathers of our democracy. They set up the executive, the legislative, and the judicial branches; but since that time we have set up a fourth dimension, if I may so term it, which is now popularly known as administrative in nature. So we have the legislative, the executive, the judicial, and the administrative.
Perhaps there are reasons for that arrangement. We found that the legislative branch, although it might enact a law, could not very well administer it. So the legislative branch enunciated the legal precepts and ordained that commissions or groups should be established by the executive branch with power to promulgate rules and regulations. These rules and regulations are the very things that impinge upon, curb, or permit the citizen who is touched by the law, as every citizen of this democracy is.
Senate bill 7, the purpose of which is to improve the administration of justice by prescribing fair administrative procedure, is a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government. It is designed to provide guarantees of due process in administrative procedure.
The subject of the administrative law and procedure is not expressly mentioned in the constitution, and there is no recognizable body of such law, as there is for the courts in the Judicial Code.
Problems of administrative law and procedure have been increased and aggravated by the continued growth of the Government, particularly in the executive branch.

[Exegesis]

No one will be able to "get rid" of the administrative state. All those laws will not be fleshed out in Congress, nor can they be, Congress would never be able to make headway. They are not experts in the fields they vote on. Hence, ideally, the Administrative State is supposed to be the locus of subject matter experts, which is why the Judicial system will default to them (even though that is circular reasoning really). So, 1. Are there any examples of danger for regular citizens? If so, name some and the results. 2. What can be done to limit their power? 3. Heritage Foundation Project 2025 isn't trying to deconstruct it, they are trying to cut steps out so the President doesn't have to nominate heads of departments to be confirmed by the Senate, but will just do it directly. That sounds dangerous no matter who does it.

[Devfullfaithandcredit]

I thank you mr Steve Bannon . Normal people have their children within the reach of the administrative state and they will jail you and take your children if you speak up against any agency. It's dangerous, and we deserve a judiciary that holds these administrative actors accountable

[josephstevens]

The Doctrine of Primary Jurisdiction, upon which a defendant may argue that a court not adjudicate "the regulated activity/person[s]" where a issue disputed is within the agency's particular field of expertise, (record) asserting a substantial risk of an inconsistent ruling. The trial court that "deferred to agency" has exclusive jurisdiction and should invoke duly and proper raised PJ doctrine and either, stay a proceeding or call for dismissal. As applied to a principle of equal protection; moreover, "fairness" (ICC fair rates-for train travel under ICA) it's institutional/historical, where a statutory interpretation is the contested substantive issue--nonetheless, a strategy is only a band-aid and does not approach the substantive due process/procedural deficiencies--also a strategy of the administrative agency.

[altondrew]

There is a naivete here. Professor Hamburger takes for granted that the State wants to expand, by any means necessary, including the expansion of the administrative state. The Constitution gives room for Congress to expand via an administrative state...

[vanradosevich]

We need a new bill of rights to limit the power of the Administrative State. Please give a list so that we can start the political process.

[MerrimanDevonshire]

Hm... is this 10 minute Ad for "How I Created a Multiple Six-Figure Business From Home" an omen for this video on 08NOV17?

[peolesdru]

What's growing faster? The Administrative State, or all other human activity?

[glenwillison]

So what is your alternative?
Say the people want clean air.
Politicians pass a Clean Air Act, but then what?
How do you enforce it?
Do the regulators get congress and the president involved in the minutiae of every decision or move they make?

[theindianskeptic]

I understand bureaucracy is monarchical and opaque, but corporations are also tyrannical structures where all power is concentrated in the hands of the owner and as I see it they are now holding more power than the government. how do we achieve real liberty where we're truly free from government and individuals who own all the resources forcing us people to be dependent upon them for our basic survival.
I really appreciate ur insights on hegemony of the state but u don't talk about the hegemony of the individual who owns the means of production, or is individualistic hegemony over the masses is acceptable in a free society.

[youBrakeIHonk]

Only seen two videos from this channel, this being the second.

Subscribed. I'm a hardcore conservative, btw.

[KittredgeRitter]

That's an interesting observation at 11 minutes. Andrew Napolitano pointed out the same thing in regards to the aftermath of the civil war. He said before the civil war the federal government never had a relationship with the individual.

[jeremiahhuckleberry]

What state throughout history hasn't been an 'administrative' state? All states must be administrated, no way around that. The correct term should be the 'bureaucratic' state. Bureaucracies have taken over the state, bureaucracies in tandem with powerful corporations who use government bureaucracies to protect and further their interests at the expense of the public interest. The corporate-bureaucratic state is the root cause of the steady erosion of freedoms we've been witnessing throughout the industrialized world, not just America or Europe.

[Stevon]

Power. Who interprets laws set by Congress. Too many agencies, but who really controls the Agencies ?
Guess who, , the Billionaires. So more agencies, less agencies. The Billionaire dictates how these laws are put into action. Certainly if the President has ultimate power to fill these agencies (EPA) with Loyalists.