Who knew that neoconservative standard-bearer Bill Kristol of The Weekly Standard and progressive-Left icon Tom Friedman of The New York Times were in such fierce agreement? Both have waded into the debate recently with defenses of the administrative state. Sure, they might disagree on the top marginal tax rate or which country to invade next, but these are tactical differences—a polite disagreement over means not ends.
Kristol infamously tweeted “But if it comes to it, prefer the deep state to the Trump state,” after expressing a perfunctory preference for “normal democratic and constitutional politics.” In other words, he likes self-government and ordinary constitutional forms when his side wins, but when he loses, he wants the referee to call back the last touchdown.
For his part, Friedman decried the Brexit vote, defended the unrepresentative European Union system of government-by-bureaucracy, and slammed rethinking NAFTA and withdrawal from Trans-Pacific Partnership as a part of “a ‘Bannon fantasy’ that we’re going to deconstruct the global administrative state.”
Kristol and Friedman are representatives of a fading bipartisan consensus that prioritizes rule by experts. This has led to an erosion of national sovereignty throughout the West at the hands of the very institutions that Friedman touts as “creat(ing) a more rules based world.” No doubt he is right, but the question, as ever, is who rules?
The American political tradition says the people rule, but elite allegiance to the administrative state undermines that bedrock principle. In the Friedman-Kristol view of the world, politics is a game for well-connected elites whose machinations and intrigues decide who gets nominal control over the apparatus of the state.
I say “nominal control” because the problem with the administrative state isn’t that it administers but that it rules. In other words, it has become a government unto itself. Law professor Jonathan Turley writes,“one study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.” But that’s not the worst of it. Many federal agencies not only make their own laws, they also have sole power to adjudicate and enforce them. That means that all three functions of government—executive, legislative, and judiciary—are held by one body.
For example, the Environmental Protection Agency writes its own laws (they’re called “rules,” but they have the force of law), has its own administrative law courts that judge violations of those rules, and even has an enforcement arm that includes an armed police force to ensure those rules are followed. All three functions answer to the head of the EPA, whose Orwellian title “Administrator.” When James Madison warned “against a gradual concentration of the several powers in the same department,” he foresaw this tendency of power to accumulate out of reach of the people.
There comes a time in the life of nearly every institution when it prioritizes its own self-preservation and perquisites over its mission. The civil service, which was designed to implement the will of the people as expressed through their elected representatives, metastasized—whether by design or by accident—into the administrative state a couple of generations ago. Since then it has expanded to form an unelected and largely unaccountable fourth branch of government that is outside of our constitutional system.
It’s not only small-government conservatives or Tea Party types who are concerned about this new power center. Glenn Greenwald, a man of the Left and a Pulitzer Prize winning journalist, put it this way:
The deep state, although there’s no precise or scientific definition, generally refers to the agencies in Washington that are permanent power factions. They stay and exercise power even as presidents who are elected come and go…This is who not just people like Bill Kristol, but lots of Democrats are placing their faith in, are trying to empower, are cheering for as they exert power separate and apart from—in fact, in opposition to—the political officials to whom they’re supposed to be subordinate.
It’s a system that benefits a select few with power or proximity to power. This isn’t to say the system is rigged only to favor “millionaires and billionaires,” as Bernie Sanders liked to say on the stump, but that government has itself become a political faction interested in its own power rather than the agent of the American people. Once upon a time this was repugnant to American principles. But Donald Trump’s emergence as a leading candidate and eventual election as president revealed the corrupt bargain at the heart of modern American politics that had been papered over by elevating often minor policy disagreements to the level of high principle.
Recent comments by Kristol and Friedman reflect the extent to which leading American intellectuals of both political parties share an affinity for what is essentially an assault on self-government. That’s why Americans express high levels of distrust for the media, regardless of their political convictions. It also explains the popularity of new media outlets that expressly reject prevailing consensus that casts voters as the third wheel of American politics—the superfluous friend the couple wishes was elsewhere.
Bill Kristol used to be fond of quoting John F. Kennedy who said, “To govern is to choose.” But those choices must be left to the people rather than to unelected mandarins in a distant capital city. And the American people want what they have always wanted—a choice not an echo.