An Excerpt of Philip Hamburger's "The Administrative Threat"
June 06, 2017
To understand how profoundly administrative governance threatens civil liberties, consider the growth of equal suffrage and the expansion of administrative power. Voting rights and the administrative state have probably been the two most remarkable developments in the federal government since the Civil War. It therefore is worth pausing to ask whether there is a connection.
Federal law was slow to protect equal suffrage. In 1870, the Fifteenth Amendment gave blacks the right to vote. In 1920, women acquired this right. And in 1965, the equality for blacks began to become a widespread reality.
Administrative power tended to expand in the wake of these changes in suffrage (a curiosity first noted by Thomas West). In 1887, Congress established the first major federal administrative agency, the Interstate Commerce Commission. In the 1930s, the New Deal created a host of powerful new agencies. And since the 1960s, federal administrative power has expanded even further. Of course, it would be a mistake to link administrative power too narrowly to the key dates in the expansion of suffrage. But growing popular participation in representative politics has evidently been accompanied by a shift of legislative power out of Congress and into administrative agencies.
The explanation is not hard to find. Although equality in voting rights has been widely accepted, the resulting democratization of American politics has prompted misgivings. Worried about the rough-and-tumble character of representative politics, and about the tendency of newly enfranchised groups to reject progressive reforms, many Americans have sought what they consider a more elevated mode of governance.
Some early progressives were quite candid about this. Woodrow Wilson complained that “the reformer is bewildered” by the need to persuade “a voting majority of several million heads.” He was particularly worried about the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” Elaborating this point, he observed: “The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes.”
Rather than try to persuade such persons, Wilson welcomed administrative governance. The people could still have their republic, but much legislative power would be shifted out of an elected body and into the hands of the right sort of people.
Government agencies regulate Americans in the full range of their lives, including their political participation, their economic endeavors, and their personal lives. As a result, administrative power is a pervasive feature of American life. But is this power constitutional?