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First Principles

The Foundations of the ‘Administrative/Deep State’

Reversing the administrative state will take a major effort. Recognizing that it exists and that it is not merely unconstitutional but in fact anti-constitutional is at least a beginning.


- November 22nd, 2019
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We hear a great deal these days about the “deep state,” especially as it applies to the Trump Administration. The president’s supporters use the term to describe the entrenched federal bureaucracy and what they believe to be its efforts to derail the president’s policies. Until recently, the president’s critics have dismissed the idea of a deep state as a crazy right-wing conspiracy.

But, in fact, the deep state is a particularly virulent form of the “administrative state,” which has been described by such scholars as John Marini, Ronald Prestritto, and Paul Moreno as a perversion of constitutional self-government. Essentially a “state within a state,” it substitutes rulemaking by unelected bureaucrats for legislation passed according to the constitutional process.

The administrative state is far more than the permanent bureaucracy about which many Americans complain: a realm of wastefulness, inefficiency, and red-tape. It is a “fourth branch of government” that fits nowhere within the scheme of the Constitution as understood by its authors. It is enabled by Congress’s unconstitutional delegation of its legislative powers to the executive, leading to the creation of the pestilent “alphabet agencies” that plague American life.

The Very Definition of Tyranny

Embracing the idea that the only legitimate government is one based on the consent of the governed, the Founders believed that a law could obligate citizens only if a constitutionally established legislature elected by the people passed it, and that a judicial decision could obligate citizens only if a constitutionally appointed judge exercising independent judgment rendered it. But entities such as the Environmental Protection Agency (EPA) and the Consumer Financial Protection Bureau (CFPB) make their own rules, enforce them, and then adjudicate disputes.

In Federalist 47, James Madison wrote that the accumulation of all powers, legislative, executive, and judicial, in the same hands “may justly be pronounced the very definition of tyranny.” It was to avoid this dangerous accumulation of power in a single branch that the Founders embedded separation of powers in the Constitution. But by exercising executive, legislative and judicial powers, these administrative agencies are constitutional anomalies that violate the separation of powers.

The administrative state is the legacy of Progressives such as Woodrow Wilson, who rejected the Declaration of Independence as the cornerstone of American Republican government and the Founders’ view that the only purpose of government is to protect the natural rights of its citizens. Instead, the Progressives embraced the idea that the purpose of government is to ameliorate the human condition; they saw the Founders’ Constitution as a hindrance to this enterprise.

In pursuit of their goal, the Progressives sought to separate “politics,” the realm of ends, from “administration,” the realm of means. But in doing so, they replaced the Founders’ limited conception of politics with an essentially unlimited one.

Government By the Experts, For the Experts

Meanwhile, the actual administration of governmental affairs was to be entrusted to scientifically trained and disinterested experts, insulated from political pressure. Of course, in practice, the “neutral” and “disinterested” experts within the “independent” bureaucratic agencies soon became active agents for particular interests and ideological impulses, mainly client groups of the Democratic Party.

Ironically, as Philip Hamburger has shown in his remarkable book, Is Administrative Law Unlawful?, the Progressives’ view was in fact reactionary, reaching backward rather than forward. He shows that the institutions of the administrative state essentially are the equivalent of royal prerogative commissions and tribunals such as the Star Chamber and High Commission established by King James I.

Although the most complete description of the administrative state is to be found in the work of such political philosophers as Marini, Prestritto, and Moreno, the workings of the administrative state can be discerned in the disciplines of economics and public policy. In the former, the standard narrative held that while individuals in the private sector were motivated by the incentive of profit, those in the public sector were motivated by altruism and selfless service to the common good. Thus, during the recent impeachment hearings, a caravan of government officials, whose job it is to advise the president and then implement his policies, were portrayed as disinterested heroes, who see it as their duty to save the republic from the president in the name of the “policy community.”

But the public choice school of economics, especially James Buchanan, upended this notion half a century ago, illustrating that individuals in the public sector also respond to incentives, albeit bureaucratic ones that differ from those in the private sector. Promotions, honors, the victory of one’s agency over another are major sources of individual motivation in the public sector.

Acute Danger to Republican Government

In the realm of public policy, the spawn of the Progressives’ political science, we see how bureaucratic decision-making leads to suboptimal outcomes, even if the bureaucrats do not purposely set out to undercut the president’s policies. Graham Allison provided the classic treatment of government decision-making in Essence of Decision, his study of the Cuban Missile Crisis.

Why did the United States and the Soviet Union behave the way they did? Especially in the case of the United States, why did certain elements of the government act in ways that seemed to undercut the policy preferences of President Kennedy and his close advisors?

Here Allison showed how the dominant decision-making model, the “rational actor” model—which treats the government as a unitary actor that examines a set of goals, evaluates them according to their utility, then chooses the one that has the highest “payoff”—didn’t explain the actual behavior of the players. He then offered two alternatives that disaggregated decision-making: the “organizational process” model; and the “governmental politics” model.

In the former, decision-makers break down a problem and assign its parts to subordinate decision-makers according to pre-established organizational lines. Then, rather than evaluating all possible courses of action to see which one is most likely to work, leaders settle on the first proposal that adequately addresses the issue from the standpoint of the various government agencies and organizations. Thus, decisions tend to focus on the short term and result in a sub-optimal result.

In the latter model, leaders, even if they share a goal, differ among themselves as to how best to achieve it because of such factors as personal interests and background. In other words, “where one stands is based on where one sits.” As a result, even the president must gain a consensus with his underlings or risk having his order misunderstood or, in some cases, ignored.

Thus both economics and public policy reinforce the idea that parts of the government act in their bureaucratic interest rather than in the general interest, which is the essence of the administrative state. The danger that the administrative state poses to republican self-government is acute. It is more suited to a government of unlimited powers and tyranny than to a government of limited powers and freedom.

What accounts for the rise of the administrative state? There is plenty of blame to go around. Citizens have been willing to exchange their liberty and independence for entitlements, the “soft despotism” that Alexis de Tocqueville foresaw in Democracy in America. Congress has abdicated its constitutional authority to legislate. The courts no longer distinguish between the administration of a law clearly written by Congress and the wholesale delegation of lawmaking powers to the alphabet agencies.

Reversing the administrative state will take a major effort. Recognizing that it exists and that it is not merely unconstitutional but in fact anti-constitutional is at least a beginning.

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