The Administrative State

Cayman Financial Review Iain Murray • October 31, 2018

King George III, decried Thomas Jefferson in America’s Declaration of Independence, “has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.” While Jefferson was channeling the colonists’ ire at imperial customs officials, his words resonate with anyone forced to deal with modern administrative bureaucracy.

Indeed, the problem with bureaucracy has gotten so bad that, in the U.S. at least, that it is often referred to as a fourth branch of government – the “administrative state,” or even the “deep state.” All of these descriptions mark an admission that administrative law has some form of existence outside the norms of western liberal democracy. Tackling the problem will require a return to those norms.

The administrative state is legitimate in the strict sense of the word. Everything about it has been set up by act of either Congress or Parliament. Courts have repeatedly found this process legitimate under the relevant constitutional requirements. The legislature, courts have found, has the right to delegate certain of its legislative powers to the executive, allowing the administration to write rules that have the force of law..........early in the republic’s existence, the U.S. Supreme Court blurred this once-bright line. In 1825, the court ruled that while Congress must deal with “important” subjects, mere details could be left up to the executive (Wayman v. Southard). A century later, in 1928, the court went further, saying that the legislature may delegate powers as long as there is an “intelligible principle” to which the executive must conform (J. W. Hampton, Jr. & Co. v. United States)................The edifice built on this slim foundation has proved mighty indeed. Huge numbers of executive agencies have sprung up – so many that even federal agencies cannot agree how many there are – the Department of Justice says 252, the U.S. Government Manual says 316, and USA.gov says 443. Not only do these have rulemaking and enforcement powers, many of them have their own courts, whose procedures must be exhausted before one can even think about appealing to the U.S. federal courts............To Read More......