The Administrative State

The September 13, 2016 Claremont Institute article Restatement on Flight 93 by Publius Decius Mus is a followup to his notable September 5 article The Flight 93 Election. The followup article makes a lot of important points, which places it on the recommended reading list. Here are some excerpts regarding Trump and his failure to acquiesce to the left and to the administrative state:

Good conservatism adheres to the parameters we [the left] set for you. You may say this, but not this. If you do and say what we tell you to, your reward will be that we will call you racist Nazis a little less. Also, what we allow as “good conservatism” will drift ever leftward, so that something we permitted a year or two ago is subject to revocation without notice and you better get on board immediately or the deal is off. Conservatism has accepted this “bargain”—hence its lack of thymos—yet amazingly thinks of itself as standing firm for eternal principle...

Trump is not conservative enough for the conservatives but way too conservative for the Left, yet somehow they find common cause. Earlier I posited that the reason is Trump’s position on immigration. Let me add two others.

The first is simply that Trump might win. He is not playing his assigned role of gentlemanly loser the way McCain and Romney did, and may well have tapped into some previously untapped sentiment that he can ride to victory. This is a problem for both the Right and the Left. The professional Right (correctly) fears that a Trump victory will finally make their irrelevance undeniable. The Left knows that so long as Republicans kept playing by the same rules and appealing to the same dwindling base of voters, there was no danger....

I urge readers to go back through John Marini’s argument, to which I cannot do anything close to full justice. Suffice to say here, the current governing arrangement of the United States is rule by a transnational managerial class in conjunction with the administrative state. To the extent that the parties are adversarial at the national level, it is merely to determine who gets to run the administrative state for four years. Challenging the administrative state is out of the question...

Trump is the first candidate since Reagan to threaten this arrangement. To again oversimplify Marini (and Aristotle), the question here is: who rules? The many or the few? The people or the oligarchs? Our Constitution says: the people are sovereign, and their rule is mediated through representative institutions, limited by written Constitutional norms. The administrative state says: experts must rule because various advances (the march of history) have made governing too complicated for public deliberation, and besides, the unwise people often lack knowledge of their own best interests even on rudimentary matters. When the people want something that they shouldn’t want or mustn’t have, the administrative state prevents it, no matter what the people vote for. When the people don’t want something that the administrative state sees as salutary or necessary, it is simply imposed by fiat.

Don’t want more immigration? Too bad, we know what’s best. Think bathrooms should be reserved for the two biological sexes? Too bad, we rule. And so on and on...

If the Constitution has any force or meaning, then “We the People” get to decide not merely who gets to run the administrative state...

Trump, right now, is right and the conservatives are wrong. His moderate program of secure borders, economic nationalism, and America-first foreign policy—all things that liberals and conservatives alike used to take for granted, if they disagreed on implementation—holds the promise of fostering more unity. But today, liberals are apoplectic at the mere mention of this program—controlling borders is “extreme” but a “borderless world” is the “ultimate wisdom”...

The author clarifies, pointing out that there are four, not three, branches of United States government.

The Left has been insisting for more than a century that our Constitution is fatally flawed, written for another age, outmoded, hypocritical, hopelessly undermined by slavery and racism and sexism and property requirements, and so much else...

This is a very large topic, and for those interested, there is an equally large body of scholarship that explains it all in detail. For now, let’s just ask ourselves two questions. First, how do the mechanics of government, as written in the Constitution, differ from current practice? Second, how well are the rights Amendments observed? As to the first, we do still have those three branches of government mentioned.

But we also have a fourth, hidden in plain sight within the executive, namely the bureaucracy or administrative state. It both usurps legislative power and uses executive power in an unaccountable way. Congress does not use its own powers but meekly defers to the executive and to the bureaucracy. The executive does whatever it wants. The judiciary also usurps legislative and, when it’s really feeling its oats, executive power through the use of consent decrees and the like. And that’s just the feds—before we even get to the relationship between the feds and the states. As to the second, can you think of a single amendment among the Bill of Rights that is not routinely violated—with the acquiescence and approval of the Left? I can’t.

All this happened because, for more than a century, the Left has been working at best to “change” and “update” the Constitution, and at worst to ignore it or get around it. This agenda is not hidden but announced and boasted of....