Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century. John Marini and Ken Masugi, eds. New York: Encounter Books, 2019.
This volume of essays and lectures sets out John Marini’s case that the administrative state is the primary threat to America’s constitution. The timing of the volume’s publication is convenient. Attacking the administrative state is said to be the central mission of the Trump Administration, an Administration that is otherwise marked by a vacuum of thinking about the purpose of government. If Marini’s career output gives the Administration direction, that is a public service. Students of the administrative state’s overreach have been welcomed into the Trump Administration, and Trump has nominated judges who seem sensitive to the administrative state’s constitutional threat.
If Marini’s work had been only a critique of bureaucracy, however, there would be no reason to collect his work in a single volume. Conservatives have been enumerating the failings of the state for years. Nor is there anything new in saying that the Congress has surrendered power to the executive branch; the Imperial Presidency is well-documented. Or in worrying about the rise of administrative agencies, delegated rule making and the massive scale of regulation.
But collecting Marini’s work demonstrates his ambition. Taken together, the writings published in Unmasking the Administrative State bring the scope, the searing insight and the drama of The Closing of the American Mind to the study of administration. Until Bloom’s published Closing, conservatives had been enumerating the failings of Baby Boomer culture for years. Closing elevated the critique. It connected the mundane deterioration of America’s mores to the civilization-level struggles of the West since ancient times. Marini’s work connects the mundane dysfunction of bureaucratization and regulation to the similar struggle over the nature of politics and the limits of human nature.
For Marini, the administrative state does more than rebalance the separation of powers; it creates an entirely new regime by subverting the American founding. The administrative state does not emerge from the quest for a more perfect union, but from American progressives importing Rousseau and Hegel to achieve the universal homogenous state.
Progressives like Wilson turn the administration of government away from the exercise of practical reason and prudence into an exercise in the application of objective science. To make the universal, homogeneous state work, they entrust government to bureaucrats who must be portrayed as objective, independent and disinterested experts. And to accomplish that, the progressives erect legal structures to protect these experts from being too accountable to the interested and partisan elected officials. Progressives replace moderate and prudent statesmen with a new aristocracy that masks itself as a cadre of objective, scientific specialists. Along the way, they shift the aim of government away from the protection of the natural rights of citizens – citizens who tend towards faction, divided by the limits of their human nature – towards the implementation of the will of a sovereign people – a sovereign people united by their attachment to reason.
Marini’s indictment of the administrative state has gained influence as the dominant stream of late-20th century conservative constitutional analysis has faded. A generation ago, conservative scholars worried that the progressive takeover of the legal profession and the American judiciary had allowed activist judges (and their supporters in academe) to overreach their legitimate authority through the over-eager use of the power of judicial review. This earlier analysis had a point: a string of public policy horrors was being imposed by the courts, from busing and the expansion of criminal rights to the highest horror, the invention of penumbras and shadows that let the Supreme Court force the states to liberalize access to abortion. Restrained judges, originalist and otherwise, it was thought, could restore the Constitution by giving Congress, the President and the states a freer hand to rule through deliberative self-government.
But for Marini, Masugi and their students, this older analysis misses the point. The primary threat to American constitutionalism is bigger than the overreach of an over-active judiciary. In fact, an activist judiciary, properly grounded, is part of the solution to the administrative state. The progressive contempt for politics and partisanship must be undone. The art of government must return to its focus on moderation and prudence. So far, so good.
Is Trump the savior of moderation and prudence in politics? Can he deliver on the restoration of American liberty? If he is able to “drain the swamp”, is that enough to undo the administrative state? Is he a second Lincoln or third Washington? Is he the kind of discrete and energetic executive that can set right the house being administered against itself?
This application of Marini’s work is a little hard to take. Comparing Trump to Lincoln or Washington illustrates the challenge. Lincoln was thrust into war, a challenge that is best met by the energy of the singular executive. Washington’s virtue was revealed through his leadership in war. When it comes to rolling back the bureaucratic attack from within, the war time mentality, with its call to unity of effort and unity of command, is exactly the opposite of what is needed. No president can lead Congress to take back the constitutional responsibilities it has surrendered. Congress must find leaders who are interested in doing more that getting judges through Senate and rolling forward continuing resolutions. We would do well to remember Madison’s solution: marry the individual ambition of the representative to the institutional prerogatives of the place. A president who reins in the administrative state does so by imposing his or her will on the bureaucracy, not by restoring American liberty.
Nor is the singular executive up to the task. After all, the administrative state strikes back when its power is under threaten. Faced with a revival of politics, reason, moderation and statesmanship, the universal, homogeneous state reaches for stronger administrative weapons in defence. As Ben Domenech puts it, the administrative state is moving to outlaw populism. It is conscripting its friends at Facebook, Twitter and Pinterest in surveillance of on-line citizen commentary and mobilization. Those who objects are either dimwitted accomplices of foreign information operations or white supremacists.
The last remaining bastion of politics and partisanship, the electoral process, comes in for special scrutiny. The creeping administration of elections started two generations ago with campaign finance reform. Elections must now be subordinated to the administrative state so election campaigns can be managed and gullible voters steered away from the populist temptation. After all, any objective observer knows that the population’s “true” interests are best preserved by the administrative state. The administrative state is not without power and certainly not without influence. Free debate becomes nothing more than “election interference” – interference in a properly administered political process.
As Canada hurtles towards a fall election, it provides a cautionary case. The Trudeau government’s minister of democratic institutions, a former student of this reviewer, has warned Twitter and other social media giants to get with the program of policing their susceptibility to populism “or else”. A small administrative team of officials appointed by Mr. Trudeau has been mandated to “monitor” election campaigning for signs of foreign interference. The Trudeau government recently announced a $C700 million ($US534 million) fund to subsidize the production of “approved” news by “private” outlets, over and above the $C1 billion annual subsidy to the government-owned Canadian Broadcasting Corp. These new “investments” in “quality” news are being overseen by experts nominated by trade unions that run attack campaigns against conservative parties. Most appallingly, Elections Canada, the expert and non-partisan agency that runs Canada’s elections recently spent $C750,000 to hire “social media influencers” to encourage young people to vote. It had to retreat when it was revealed that some of those influencers had been influencing their followers to oppose conservative parties. Canada’s administrative state will do whatever is necessary to make sure the country does not have an opportunity to elect a conservative again.
Marini’s analysis is helpful. Unlike other friendly responses to Trump’s political program, he provides a genuinely liberal perspective. The administrative state does undermine self-government and natural rights. Marini’s account of its predations avoids the anti-Enlightenment extremes and nativist conclusions of some of Trump’s other defenders. But if Marini is right – if the administrative state is not just the product of an unbalanced separation of powers but the emergence of entirely new regime, a new type of politics and a new type of polis – then rolling it back will need more than just a new type of president.