Unmasking the Administrative State
As late as 1944, Ludwig von Mises was able to write the following words in earnest:
“Although the evolution of bureaucratism has been very rapid in these last years, America is still, compared with the rest of the world, only superficially afflicted.” — *Bureaucracy*
It’s hard to imagine anyone still making this argument today. He went on to put the dilemma facing Americans in stark terms:
‘“[T]he decision of the American people will determine the outcome for the whole of mankind.”
What is the choice that America must make? John Marini says it is a decision between bureaucratic rule and political rule— the latter being what the Founders intended when they established our constitutional order. Mises’ words echoed de Toqueville’s observation regarding true American exceptionalism: our exceptional resistance to a ruling class, unlike Europe and the rest of the world.
Marini is a professor of political science at the University of Nevada, Reno, a senior fellow at the Claremont Institute, and the author of a tremendously important new book:
Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century explains exactly how the United States managed to keep a republic of checks and balances for more than a hundred years after its founding, and how a certain European philosophy of historical “Progress” gave rise to something like a deep state.
Known in academic circles as the administrative state, this entrenched class of academics and political “scientists” see themselves as the guardians of “Progress” and possessors of the essential knowledge to manage an increasingly complex society. They have gradually usurped the legitimate authority of Congress and thus the American people.
Before the term administrative state was widely used, Marini was studying its theoretical underpinnings and preparing for a time when the American people could restore legitimacy of the government.
Trump’s election came as a surprise to virtually everyone in the D.C. establishment — Republicans and Democrats. Marini understands the Trump presidency as both an opportunity and a threat. There is no guarantee that he is restoring the founding principles. Furthermore, Trump seems to be mobilizing mass political resentment a la the Progressive Movement, albeit to restore a previous state — not for a progressive agenda. The Trump phenomenon starts to make more sense, however, when viewed as a response by the American public to a leadership crisis and rejection of an unconstitutional and increasingly meddlesome bureaucracy.
I continue my exploration of the administrative state that includes interviews with leading authorities like Philip Hamburger, Jeff Bergner, and Frank Buckley. National Review calls Marini “the most theoretically coherent opponent of the administrative state,” and calls his book “one of the important documents of our constitutional crisis.”
We don’t yet know what the rebellion of 2016 against the administrative state will bring, but Marini’s writings give us everything we need to understand the historical and philosophical underpinnings of the present political turmoil.
See the conflict beneath the insults and political food fights of the moment.
The Perils of the Administrative State
With John Marini
“Trump is a threat to Washington because he takes politics seriously in a way in which many of those previously elected have not.” — John Marini, of the Claremont Institute.
Bob Zadek: Think back to your days in grade school, high school, and perhaps even college. Think about the class of student that was the most reviled, annoying, and irritating. They were the know-it-alls, the nannies, the people who would always offer unsolicited advice about how you should conduct your affairs.
In fact, the word “should” was used more than any other verb in their vocabulary. “You should do this. You should do that.”
Here we are in 2019 in a country and a world where individuals have more tools than ever before to manage one’s life competently with maximum freedom and with the confidence that most of the decisions you make will be the right decision.
As that trend continues to make decision making at the individual level easier and more effective, there is a conflict with a governmental trend towards denying us the power to make these very decisions. Government is making these decisions for us. These two trends are crashing into each other. One is the anathema to the other. They should not be coexisting but they are, and we are now governed by a government of self-appointed experts — people we don’t even select specifically. We only select them by living here, and these “experts” make all these decisions for us, denying us the freedom to run our lives and denying us the freedom to pick who is going to be running our lives.
This morning we will talk more about this growing intrusiveness, this danger to the American way of governance posed by the bureaucracy — this fourth branch of government not created by the Constitution but created just like a weed which grows and grows and grows and cannot be stopped.
To help us understand how we got here and hopefully how we can stem the tide, I am happy to welcome to the show professor John Marini.
John is a professor of political science, a profession which needs some discussion that we will have in a moment. He is a Professor of Political Science at the University of Nevada in Reno and has recently written Unmasking the Administrative State. John shares with us a lifetime of study of how the administrative state got here, how it undermines the core democratic principles of being able to control our lives through the ballot box, and how the growth of the administrative state has changed the very electoral process by which we elect the people who will govern us.
That becomes an empty, vacuous life, because we are not electing people who will govern us. The people who govern us operate behind the scenes. We never get to meet them or have contact with them until they try to control our lives. John, welcome to the show this morning.
John Marini: Thank you Bob.
Scientific Bureaucracy = The Loss of Liberty and Democracy
Bob Zadek: Now John, you have written Unmasking the Administrative State. There has been some attention given to the fact that we are over-regulated. This has been more or less accepted as true, but what have you discovered about the depth of the control of the administrative state and — I’m going to use strong words, but maybe you will support them — why is that a threat to the very democratic process itself?
John Marini: The reason it is that the so-called administrative state or bureaucracy, whatever you want to call it, substitutes the rule of expert knowledge for the rule of citizen participation, and the rule of institutions and civil society that are not governmental but which order way people live and interact in their communities. It is a very pervasive phenomenon because it establishes a control over the activities that people participate in. It formalizes everything and it takes takes the humanity out of the way things get done.
One of the purposes of bureaucracy is to take the human out and establish the rational as the way in which decisions are made, and that rational rule, of course, is meant to be without any human element. That has been one of the ongoing requirements of bureaucratic rule.
It is scientific in a certain way. At least in the way in which these structures of organization are established. By the way, these structures are not merely in the governmental segment of the world. Almost all of the largest kinds of structures that organize human activity, for example a structure like the Defense Department, or a large corporation, operates almost as bureaucratically as any governmental structure.
As more of these activities are taken over by these structures, the individuals and the persons in societies, the social units, the families, the associations, whatever it is that is nongovernmental, or what we would call “civil society associations,” become increasingly diminished and it is very hard now to distinguish or to even find a social structure, including the family, that has not been in some ways endangered by these rational bureaucratic structures. So much of the authority of government and control is put into the hands of these structures.
Revisiting First Principles: A Shift in Authority
Bob Zadek: One interesting observation. We start with the basics, the history of our country. The tasks given to government in the Constitution didn’t require expertise at all. Virtually anybody could fulfill the original goal of government, which was to protect liberty, to protect private property, and to allow individuals to flourish. You do not need to be a scientist and, respectfully a political scientist or a science-scientist, to do that. Just leave people alone. What happened was that, first, government undertook more and more of what were historically non-governmental functions. Once they undertook these functions, they had to build a system to figure out exactly how to carry out these roles somewhat competently.
The failed process started with government biting off more than it is supposed to be chewing, and then figuring out how to do it. So if the government stuck to the basic role of government, there was never any need for experts in the first place. We could have citizen elected officials. You would only need to have good character and be motivated to help the country.
John Marini: Every government has to be administered. At the time of the American founding, of course, the administration was not mentioned at all in the constitution because it was thought to be a practical activity as you mentioned, that could be undertaken by people who simply had experience in a particular area. For example, take the military, which is a prototype of bureaucracy in a certain way.
“[E]very government that has ever existed has had an administrative component, but it is only in modern times that the administrative component is established on the ground of an authority that replaces the political judgment and the practical judge, the judgment that human beings make as citizens.”
In the military, you want people that know how to conduct the art of warfare. And so you get people that have experience, but the authority for that is not science. It is not rationality but human judgment and prudence. It’s the way in which humans adapt to the practical situation they find themselves in.
So there is no question that every government that has ever existed has had an administrative component, but it is only in modern times that the administrative component is established on the ground of an authority that replaces the political judgment and the practical judge, the judgment that human beings make as citizens. It is a different kind of activity, but once that activity begins and you start establishing that administration on the ground of a rational-scientific authority, you have to displace those social institutions that existed even in civil society, that were based on something that was not rational but perhaps derived from tradition.
It was authority that was derived from social authority, parental authority, traditional authorities, etc.. There are all kinds of authority in human life that is not governmental, prior to the rational authority. The most basic of these authorities is the authority of the family. When you substitute rational authority for social authority, however, then how the family is judged is on the basis of scientific authority. So, the authority of the social scientists, the authority of the psychologists, really begins to replace even parental authority and it is very hard to maintain those social institutions that were dependent upon that authority that derived from the prior kind of authority.
So, this is not merely a transformation from government establishing the conditions of human freedom, or in other words, allowing a great deal of autonomy in civil society. This goes to the heart of transforming and even controlling civil society. It has taken a number of years to do that. It has taken much of the 20th century.
Much of that time was occupied with this transformation in these institutions. The authority of these structures come to permeate the whole of the society and in the end establish the primary authority and the expertise itself, regardless of what the citizen’s views are and regardless of what the political situation is which established the condition for the protection of rights, property, and freedom. All of those things disappear as secondary.
The State vs. the Individual: A Clash of Two Power Structures
Bob Zadek: I think what you’re really saying is, there has been a devolution in decision-making power from the civic institutions, the family, the church, and other voluntary associations of the individual, to government. To the extent that governmental and bureaucratic power grows, individual autonomy must recede. They cannot coexist. There is a crash of power structures.
I want to ask our audience which power structure instinctively seems to be better for you? Should you have power over yourself with access to unbelievable amounts of information to make a competent decision, or are you willing to allow government to quietly assume this power at the expense of the individual power? One power must recede while the other grows, and it is very insidious, occurring in tiny increments, never going back, as Madison observed. So isn’t it not only that the bureaucracy is assuming more and more power, but we are incrementally losing individual power?
John Marini: That’s absolutely right. Not only do we lose this power in the sense that it moves away from the individual or even the local community or the state, it becomes centralized. When you get a centralized administrative structure like we have in Washington, then everything in the whole of the country is moving toward the decision-making process being made in one place. So there is no politics that really occurs in any place but the center. These rational structures are also considered to be universal structures, so the tendency is to push them at even higher levels. The tendency is to move from Washington as the center of the way in which the political decision making is done, to a global order.
This is a tendency which is reflected in Europe. You can see it by the way in which the European Union has usurped and taken over the role of the nation-state. So, in America it is hard for us to do this because the constitution still imposes structural limits on what government can do. And it is also possible politically to mobilize majorities and people so they can see the problem and defend themselves against these centralizing tendencies.
The problem is that once power is centralized in Washington, and people go to Washington with a view to solving our problems there, you get an establishment in Washington that becomes so entrenched and so myopic in the sense of being only able to see the problems from the perspective of Washington, that you have an elite in Washington which is very difficult to replace politically, because all of the organized interests in the society are established with ties and links to Washington.
It is not just political institutions or economic institutions, but all institutions, from churches to science to education. Every kind of organization that wants either a subsidy from the government or a privilege from government, for example not to pay taxes or to get certain kinds of subsidies, they are all organized around Washington. So, you have a condition where all of the organized interests in the society are happy with the way Washington works. It is just the citizens who are left unhappy.
Bob Zadek: It is one-stop shopping. They have one place to go for all of their needs rather than having to make the case to every single American, if what they want is support or membership or participation. One place has all the power. Therefore, they have to be very skillful politically to get the goodies that government has to offer. Whereas, if they were making the case to the American public, a political skill is less useful than making the case on the merits. So those organizations that succeed in getting the goodies from society are those with political skills, not necessarily those who deserve it.
John Marini: America has really centralized. It was probably the last industrial nation in the Western world to centralize in Washington. I’ll give you just one figure. If you had gone to Washington, say in 1962 or any time prior, you would have seen that there were hardly any lobbying firms or interests that had a permanent Washington establishment. If you were a corporation, you typically had to deal with the problems of governance — these political problems — the problems of how you were regulated, in the states.
No Taxation Based Solely on Delegation
Bob Zadek: Congress has stopped legislating, in John’s words, and has become only an organization that delegates to others, ceding legislative responsibility. This has been the source of most of our problems. Also, and I would remind our listeners that of all the cabinet posts in Washington which administer the bureaucratic state, there is no cabinet post called the Department of Liberty and Personal Freedom. There is no organized body in Washington to do the most crucial government protection, that is, to protect individual liberties and private property.
Please explain a crucial concept set forth in great detail in your book, which is Congressional delegation. Congress has become an oversight body, not a legislative body. This is crucial to understanding the dynamic of what is going on in Washington.
“Also, and I would remind our listeners that of all the cabinet posts in Washington which administer the bureaucratic state, there is no cabinet post called the Department of Liberty and Personal Freedom.”
John Marini: Beginning after 1964, more and more interests went to Washington and began to petition. There were an increasing number of questions being decided by the central government rather than in the other areas.
Bob Zadek: When Washington starts to accumulate power and therefore begins to dispense more money, then, if you want favors from government, the place to go is where the powerful government is, which is now increasingly in Washington. So all of a sudden, Washington has lots of power and therefore many constituencies begin seeking favors from Washington.
And as John pointed out, these constituencies are not just businesses looking for special favors or looking for tax compromises and tax statutes that help them. It includes all aspects of society, including charitable organizations. Let’s take organizations that support research in women’s breast cancer or AIDS research or sickle cell anemia. Those charities tend to have a very specific political constituency. And therefore, since the constituency is politically powerful, those charities will get a larger slice of the pie, not because that charity is the most deserving, but simply because they have the most political power.
If money were allocated to charities based upon making the best case on the merits and the charities had to go to the American public, then the supporting of charities would be more of a meritocracy driven by the will of all Americans rather than what we have, which is money being awarded not upon the merits but upon political skill. The danger of having these decisions being decided in Washington is that the organizations that triumph are not those that deserve it, but those that are the best at political skills. And therein lies the trouble if you have centralized power in Washington.
A Confused Congress: From Legislation to Delegation
Bob Zadek: Another problem with having bureaucrats make so much of the decision is that they are unelected, which means that the political process becomes an empty ritual. Explain Congress’s evolution from legislation and making laws within an area to which they are constitutionally permitted to make laws, to not making laws but becoming a delegating body, by simply overseeing the other branches of government. That is a sea change in the structure of the most democratic branch of government. Please explain it to us.
John Marini: Sure. That’s a crucial difference. What happens when Congress decides that more activity is going to be done in Washington? It has to increase the power of the executive branch. And as it decided that it couldn’t make general laws concerning regulations, they had to give more power to specialized bodies within the bureaucracy that had knowledge about how to regulate these things. So you see a move from Congress being a lawmaking body to an administrative oversight body. And that became, of course, what the central activity of Congress has become. It delegates more and more power to the executive branch and then it becomes harder for it to make general legislation.
Bob Zadek: We all know that because so many times on the evening news we see congressman grilling a witness, whether it is from the Defense Department or from Veterans Affairs, to get a soundbite on the evening news about what a bad job they have done in carrying out the function that they were delegated by Congress. Congress, once they undertake to legislate in areas that aren’t supposed to be the purview of the federal government, and once they undertake to intrude into other aspects of American life, the legislation would become quite complex and beyond the competence of Congress. So what Congress does to solve this problem is they pass aspirational legislation. Something like, “we decree that there should be clean air now.” Then they delegate to a federal executive branch agency.
They say, “you figure out how to get the job done. And by the way, if you do it badly, we’ll see you under the lights as we grill you But we’re not going to tell you how to do it, because we have to go to our constituency and tell them, “I voted for clean air. So reelect me to Congress.” Congress only sets aspirational goals. They don’t pass laws. They pass goals.
John Marini: They don’t pass laws that actually are general laws that apply equally. What they do is they delegate authority to agencies who then make rules. Rules are not laws. The difference is that when you pass a general law, the law applies equally everywhere.
When you delegate authority, the rules become specialized and they then are dealt with by whoever is regulated also participates in the rule-making process. The interests don’t mind this. Let’s say if you are regulated by government, you don’t mind being regulated because you are at the table with the bureaucrats figuring out what the rules are going to be. What you lose when you do this is really the rule of law. What you have is that there are people who have extra privileges that appear in Washington, and who have a privileged position in determining what the rules are that govern their own industries, and this is true in almost all kinds of activities that are involved in the rule-making process.
So, it is very difficult to have a rule of law when Congress doesn’t pass general legislation that applies equally to everyone, including Congress. And Congress routinely exempts itself from the laws that has passed. It also exempts itself from regulations of regulatory authorities. So it is a very different kind of phenomenon that you have. What you have in Washington really is that the organized interests are privileged in a certain way in which citizens are not.
And it is very difficult then to have the rule of law, but it’s also very difficult to enable the people in the country to consent to the government they have, since they have no way to get to the people who are actually making these rules that fall upon them in their communities wherever they are.
What you have seen over the last 50 years is that almost every organized interest has created a presence in Washington. And if they cannot do it themselves is they hire a national lobbyist to look out for that interest. So what you have is a well-organized government of interests, but a government that does not really have any way of expressing what is the common good for all of the citizens and it becomes increasingly difficult for citizens to have any real confidence in their government. So, you have a real disjunction between the people as they live in their society and in their local communities and the government. You could say they are more like subjects rather than citizens.
Bob Zadek: You said all interests that are represented or all interests go to Washington. I would question the word “all.” The interest that is not represented by a lobbying group, John is, you and I. It is the individuals. The individuals don’t have a lobbying group. We don’t have lobbyists lobbying for us. And if we think that our elected officials will do the job, they won’t, because they have delegated the job to the bureaucrats.
The bureaucrats have no fealty to average Americans. The bureaucrats do not have as part of their assignment the protection of individual freedom. There is no agency established to do that. Therefore, freedom always yields. The very structure of the bureaucracy means they will pay attention to all of the interests and all of the technical aspects of their assignment. But they do not pay attention to the freedom. And freedom, as Madison observed, will always yield.
“The very structure of the bureaucracy means they will pay attention to all of the interests and all of the technical aspects of their assignment. But they do not pay attention to the freedom. And freedom, as Madison observed, will always yield.”
The reason we are spending an hour on Sunday morning discussing this is because the growth of the bureaucracy is incrementally and dramatically resulting in the decline of freedom. If individuals value freedom as a concept, they must resist the growth of the bureaucracy, because the two cannot exist.
We the Wards of the Self-Appointed Problem Solvers
Bob Zadek: Now John, in your book you mentioned that bureaucrats see their role as solving the problems of society. Well, who picked that as a valid governmental rule? A government’s job is not to solve the problems of society. That’s not what anybody envisioned. It is to protect property and liberty, and to leave us alone. We are individually and collectively able to solve other social problems. Tell us a bit about how they self-appointed themselves as the solution to “solve problems of society.”
John Marini: These are problems that can be solved rationally in a way that requires that they have control over these problems. So when you create expertise in a certain area of society, whether you’re a sociologist, psychologist, you’re always trying to have a way of establishing knowledge about a problem that requires that knowledge be put to use. It is put to use when government can actually implement what it is that these technicians or these rational bureaucrats decide is a way to solve a particular problem.
What makes this so difficult to solve is that citizens do not participate meaningfully in the political life even where they live because the people that are elected at the state and local levels are appendages of the Federal bureaucracy. If you look at the political leaders in America now, they are organized around Washington the same way the organized interests are, economic or socially. You have got national organizations of mayors, national organizations of governors, national organizations of all the authority that exists in local government. All of these authorities are organized to be able to petition the federal government.
Bob Zadek: The point is that all the centralized power resides in Washington. It is not my suggestion that individuals should be just abandoned and left to their own devices. And by way of example of how I envision the role of government: If you don’t feel well or you have a medical problem, I’m not suggesting you’re going to make this, how to fix it yourself, but you have the power to select a doctor. You have all the information available to select a doctor and the proper role of the doctor and the patient or in my case an attorney and his client, is that the attorney or the doctor or whatever professional, analyzes the situation on behalf of the patient or the client and gives the patient or the client the choices.
The client makes the decision. In a bureaucracy, it is a distorted relationship. The bureaucracy decides what the best solution is and then they force it upon us. We don’t get a choice. So, if a doctor would simply tell you what to do and not give you choices, that doctor would lose her license. You are not allowed to do that as a professional. But bureaucrats have a different license. They not only will analyze your problem, they will solve it for you and you darn well better accept their solution or you are going to go to jail or be fined. So the difference between the government solving the problems of society and a physician or an attorney or a professional helping an individual solve a problem is, ultimately the individual has the freedom to decide. When government “solves your problem,” you don’t have that freedom.
How did government get appointed as solving the problems of society, which means that individuals are incapable of solving the problems themselves. It is that core assumption that makes me crazy. That somehow we became wards of the state. Bureaucrats aren’t bad people. They are simply empowered because they believe we need bureaucracy to solve our problems. Haven’t we just become wards of the state, incompetent to make decisions about our own lives?
John Marini: I think that’s right. What you get when you have all of these people who are doing this, is that they understand their world and their work in terms of their profession. In other words, they think they are doing good things. Their loyalty really is to their profession. It is not even a political understanding that is established. The way in which a person who’s elected to office has to take into account at least the constituency that elects it. These folks don’t have to consider those things in any political way. Because the assumption is that when we get to a certain stage in history, politics is going to end, and rational administration is going to solve our problems.
This is a perspective that was established both theoretically in terms of political thought and then practically in terms of how these structures and institutions were created over the course really of the whole 20th century. Because of the way in which our constitution structures government, America has made it much more difficult to centralize that administration. So it didn’t happen until roughly the last 50 years or so. But as you can see, as it gets more and more power, it gets harder and harder for the people to participate in their own governance.
They can’t participate really meaningfully at the local or state level and of course they don’t have the means to be able to participate in Washington because you have to have a presence in Washington in order to participate. Only the organized interests can do that very effectively. That’s why you have so many people who go to Washington who think Washington works quite well. They’re at the center and they think they’re making important decisions and decisions that they think are good and right for the country. But as you said, what that means is that when somebody else is making the decisions for you, you become a subject of the administrative state rather than a citizen.
Bob Zadek:I have seen lots of economic charts but I have never seen a graph that charts the status of individual personal liberty as a political concept in our country. I dare say if you had two graphs, one marking personal freedom and the other the growth of the bureaucratic state, they would move in an exact inverse concert. The threat to me is the loss of political freedom without any benefit. It is an erosion of our personal autonomy without any corresponding benefit. It’s insidious because it is so invisible.
People don’t notice that now they are carrying a real ID card, a government identification card that they never used to have to carry.
Donald Trump: A Citizen President
Bob Zadek: You have such an original view of the Trump administration and its role on the administrative state. I know I’m asking for a lot in a very short period of time, but summarize, the relationship of the Trump administration with all of its warts and calluses and problems of style. Tell us about how it has affected the administrative state and whether that type of orientation, offers promise.
John Marini: I think the thing that Trump saw, and perhaps he saw it better than most because he didn’t come out of the environment of government, was that when he ran for office, the goal was political. He wanted to actually mobilize the majority to go to the electorate and tell him what they wanted to do. If they wanted him to do it he would actually do it. That has been very rare in American politics in the last 40 or 50 years. So he actually begins from the perspective of a citizen rather than from the perspective of somebody who has established a kind of profession of government. Instead of thinking about government as a profession.
Trump is a threat to Washington because he takes politics seriously in a way in which many of those previously elected have not. They think that you could simply mobilize groups and keep groups divided, and you don’t have to look out for the interest of the whole, for the common good of the citizens. Trump is the first to look out for the common good.
Bob Zadek: So, Trump is the first “citizen President” we’ve had in quite some time. Kind of interesting. John, thank you so much.
- Claremont Institute Center for the Study of Statesmanship and Political Philosophy
- Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century [Amazon]
- How the Ruling Class Rules, by John Marini, February 8, 2018
- Marini’s Author page at The American Mind (the online publication of the Claremont Institute)
- VIDEO — John Marini | The Real Crisis of American Politics — Hillsdale College, March 14, 2019