How to Defeat the Administrative State
Our nation faces many problems, including moral decay, religious decline, economic malaise, and military vulnerabilities, but none of these problems are as firmly entrenched as our primary governmental problem, the administrative state.
Administrative power is the executive evasion of legislative and judicial power. The Constitution establishes one mode of making law (in Congress) and one method of adjudication (in the courts). Administrative agencies, however, depart from these constitutional avenues of legislative and judicial power to pursue other regulatory pathways. Administrative power is like off-road driving — exhilarating for those in the driver’s seat but unnerving for the rest of us.
The difficulty isn’t just that it’s unconstitutional; it’s also harmful, even dangerous. The greatest danger is that the administrative state shifts legislative power out of Congress into the hands of unelected bureaucrats. In this way, administrative rulemaking diminishes the value of voting. Your representatives never voted for the current regulation of gas stoves, dishwashers, or bump stocks. All of this and much more is being done without a vote of Congress and therefore without regard to your vote. Agencies thereby defeat our agency.
The standard excuse is that Congress authorizes administrative rulemaking. This authorization, however, is often fictional. Agencies tend to stretch or just ignore their authorizing statutes — as in Cargill v. Garland, a bump-stock case currently being litigated in the Supreme Court by my civil-rights organization, New Civil Liberties Alliance (NCLA).
Chevron v. Natural Resources Defense Council (1984) candidly requires judges to defer to agency interpretations of ambiguous or silent statutes. So, in Relentless v. Department of Commerce — a fisheries case — the NCLA is asking the Supreme Court to reconsider Chevron. But until the Court retreats from the disgraceful Chevron precedent, agencies will continue to rely on it to make rules without congressional authorization.
We are repeatedly told not to worry about administrative power because it comes with prior congressional authorization and subsequent judicial review. Yet because of Chevron deference, there often is neither — neither congressional authorization beforehand nor meaningful judicial review afterward.
We thus live in a strange republic. It is a republic in which most law is bureaucratically commanded from above rather than made by our elected representatives, and in which the judges brazenly refuse to say what the law is.
Unfortunately, it gets worse, as administrative power is not a stationary object. On the contrary, it is an evolving threat. Administrative power is best understood as a cascade of evasions. It begins by evading the Constitution’s avenues for legislative and judicial power; then it evades relatively formal administrative processes; then it circumvents even the less formal ones. Like water, it flows down ever lower channels until it reaches the gutter.
What do I mean by this? The cutting edge of administrative power nowadays is not administrative rulemaking. (That is so . . . 20th century.) Rather, the cutting edge of administrative power is sub-administrative pressure and inducement, which is used to secure illicit regulation. When government can’t regulate by statute because of political obstacles, it adopts administrative rules, and when it can’t get administrative rules because of constitutional concerns, it turns to sub-administrative mechanisms to impose what it otherwise could not.
The sub-administrative tools include the threat of regulatory hassle (such as repeated inspections), the threat of denying a license (even on political grounds), and third-party boycotts (most notoriously, Operation Choke Point, which pressured banks to deny financial services to payday lenders and other lawful but disfavored businesses). In addition to such administrative extortion, sub-administrative power includes less obviously coercive mechanisms — unlawful deals, for example, and informal conditions on funding. By such means, there is little that agencies cannot demand.
The administrative state has thereby become much worse than it was in the late 20th century. We once had the rule of law; then the administrative state gave us a pale substitute in the rule of rules; and now we have sub-administrative power, which descends to raw power. Most disturbingly, this is how government imposes censorship.
One of the NCLA’s cases currently in the Supreme Court is Murthy v. Missouri. We are suing federal officials for censoring our clients, distinguished scientists and commentators, on social-media platforms. The government, from the White House to the FBI, pressured the platforms to suppress our clients’ scientific and medical speech and prevented them from reading other dissenting voices.
How did the federal officials get the platforms to suppress speech? Most crudely, government threatened to revise Section 230 of the Communications Decency Act unless the platforms censored Americans. The government also seems to have protected Facebook from European regulation in exchange for Facebook’s increased compliance with the government’s censorship demands. It even coordinated censorship among the platforms (something the platforms themselves couldn’t do without violating antitrust law). All of this is sub-administrative censorship — a new and especially dangerous sort of administrative control.
Far from being embarrassed, the government bureaucrats view themselves as doing God’s work in censoring what they consider unwholesome opinions on social media. Overt regulation (typical of the 20th century) seems to them clumsy and crude. In contrast, censorship appears to be an efficient and effective mechanism for controlling the population. It allows government to control minds, not just bodies. Rather than force anyone to comply, government can just suppress inconvenient information and thereby get “voluntary” compliance. Of course, this is mind control, but government prefers to call it protecting “cognitive infrastructure.”
All of this is profoundly dangerous. We therefore must ask: How can we push back? How can we confine the administrative state?
My response has been to found the NCLA. In 2014, I published my book Is Administrative Law Unlawful? It hit a nerve and initiated the contemporary attempt to rein in the administrative state.
But it struck me that we needed better litigation against administrative power. Too much of the litigation against administrative power was tactical, not strategic. It aimed to protect one industry or another, not to take down the unconstitutional regime, let alone to protect individuals.
I wanted a new style of civil-rights litigation. Rather than attack particular regulations or agencies, the NCLA aims to dislodge types of unconstitutional power that cut across agencies. Instead of challenging administrative power narrowly in terms of the separation of powers, we also protest against it as a threat to civil liberties — as a threat to voting rights, due process, jury rights, free speech, religious liberty, and equality.
We therefore litigate against poorly conceived 20th-century doctrines, not just within them, and press for a return to constitutional principles. Not narrowly a matter of “originalist” interpretation, this return to principle focuses on the disastrous contemporary effects of administrative power. Because of the grim realities of administrative power, American constitutional ideals — for example, jury and due-process rights — have never been more relevant.
Most broadly, we follow Aleksandr Solzhenitsyn’s advice to live not by lies — indeed, to live in truth. That is, we state the constitutional and contemporary objections to the administrative state as candidly and bluntly as possible.
Although living in truth is valuable in litigation, that is not enough. Ultimately, we need a broader commitment — an academic, judicial, and societal commitment — to the pursuit of truth and to the nation’s valuable ideals and institutions. The New Civil Liberties Alliance is therefore dedicated to a new civil-rights movement. The administrative state is a profound threat, endangering everything from free speech to equality. All of us, in all fields of endeavor, therefore need to work against this danger. Together, we can defeat the administrative state and restore constitutional government.
February 22, 2024
Originally Published in National Review