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Ron Paul See other Ron Paul Articles Title: A Century of Impotency: Conservative Failure and the Administrative State Conservatives have failed to restrain the administrative state because they have accepted that it is a necessary governmental innovation required by the complexity of modern society. James Landis is widely credited with crafting the theoretical architecture supporting President Roosevelt’s radical reconstruction—and expansion—of the federal government. Landis shrewdly both established and legitimized the regulatory state, including Roosevelt’s creation of new federal administrative agencies, by offering the regulatory state as the solution to the problem of modern governance: the administrative state “is, in essence, our generation’s answer to the inadequacy of the judicial and legislative process.” The Landis premise took concrete shape through Roosevelt’s expansion of the regulatory state, and in doing so, it brought to fruition Woodrow Wilson’s progressive intellectual project: rule by experts, insulated from the popular will Landis believed the “the administrative process” for which he advocated would “spring from the inadequacy of a simply tripartite form of government to deal with modern problems” because modern problems were simply too large and complex to be entrusted to the system based on the separation of powers instituted by our nation’s founders. Landis framed this innovation as consistent with separation of powers principles because he believed the separation of powers called both for separation but also coordination among the branches, and he saw the administrative state as essential to creating that coordination: If the doctrine of separation of power implies division, it also implies balance, and balance calls for equality. The creation of administrative power may be the means for the preservation of that balance, so that paradoxically enough, though it may seem in theoretic violation of the doctrine of the separation of powers, it may in matter of fact be the means for the preservation of the content of that doctrine. What the tripartite branches could not coordinate among themselves directly, Landis believed administrative agencies could coordinate as a substitute. Landis then aimed to create administrative agencies that themselves combined the three aspects of government. Years later, the Administrative Procedure Act codified this three-branches-in-one-agency approach to administrative power, defining not only rulemaking authority for federal agencies (a quasi-legislative power), but also adjudicative authority (a quasi-judicial power). In reality, Landis’s three-branches-in-one-agency theory never comported with the separation of powers principles that the founders embedded in our Constitution. But even if it could have been reconciled with those principles as a theoretical matter, the past 100 years have demonstrated that the administrative state is the single biggest threat that faces the Constitution and the republic it establishes. What began as a type of separation-of-powers “innovation” beyond the Constitution has persisted as nothing less than tyranny. The vast majority of our governance today is created, maintained, and enforced by unelected bureaucrats who are almost entirely insulated from accountability to any branch of government, let alone the people. This reality was never on fuller display than during the Trump Administration, as I witnessed firsthand. From President Trump’s inauguration forward, the recalcitrant federal bureaucracy slow- walked his policies, including policy promises that were central to his victorious 2016 campaign (and that therefore commanded significant support from the American people). The Army Corps of Engineers dragged its feet in finalizing plans for the construction of a border wall. The Department of Education refused to withdraw Obama-era memoranda on Title IV and disparate impact. Bureaucrats at the Department of State ultimately blocked efforts to require “extreme vetting” for foreign nationals entering the United States. The idea that the federal bureaucracy is accountable to the president is a mirage. And yet, for decades now, conservatives have failed to mount any fundamental challenge to the central Landis claim undergirding the administrative state: the inadequacy of the self-governing tripartite branches. There lies the problem for conservative reforms of the administrative state as they have been proposed for the last 40 years. Landis believed the complexity of modern problems demanded the administrative state as a solution, and by and large, even conservatives have agreed. In fact, when conservatives have dared to oppose the administrative state, they have framed their opposition through an economic lens: the administrative state is a vehicle for regulation and government control of the market. As such, conservatives’ tools for combatting it have focused almost exclusively on curtailing the authority of the administrative state to promulgate new regulations and affixing costs to its enactments. In this view, the administrative state as seen through green eyeshades is a problem only because it is profligate and burdens the marketplace, not because “coordination” may now work in conflict with the policy preferences and reanimated desires for political control of a free people. The tyranny of the administrative state is not merely an economic tyranny: it is a tyranny over all purposes of government, a capturing of the people’s power over all political questions, not merely pocketbook questions. Perhaps it has been easy for conservatives to adopt the Landis premise because before FDR’s remaking of the federal government, conservatives were already committed to the idea that some modern problems were so complex they could not be resolved through the basic instruments of self-governance and instead required the intervention of experts. When Landis was previewing his ideas publicly prior to working in the executive branch, President Herbert Hoover signed the Reconstruction Finance Corporation Act, creating a new, government-sponsored financial institution that would fit right in with the “independent agencies” of today. The Reconstruction Finance Corporation was a quasi-public corporation that borrowed its funds over its lifetime almost entirely from the federal government for the purpose of lending directly to banks and other financial institutions. The RFC was composed of professionals hired outside the civil service system, and the federal government appointed its executive officers and board of directors. Even the leading conservative of the time, Senator Robert Taft of Ohio, favored the RFC and would later back New Deal agency programs, including subsidized loans for farmers and homeowners and accelerated public works spending. In retrospect, the RFC was a template for the New Deal federal agencies FDR later created, including the Tennessee Valley Authority, a quasi-governmental corporation, the Works Progress Administration, the Federal Communications Commission, the Federal Housing Administration, and the Securities and Exchange Commission. More importantly, it was a harbinger of decades of conservative capitulation: In creating the RFC, conservatives like Taft had essentially adopted the Progressive view that modern problems required credentialed experts and technocratic governance. As Taft would posit, laissez-faire individualism was a political-philosophical perspective that required mediation from governmental authorities. The solution to the administrative state, however, depends on resisting the Landis premise and accepting instead that even modern problems can be solved without administrative agencies, or that the price of solving those problems is too high if administrative agencies are the only means of doing so. Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest
#1. To: Ada (#0)
That WPA concrete on Howard St in Illinois was hard as nails. ;) "When bad men combine, the good must associate; else they will fall, one by one." Edmund Burke
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