The Administrative State

What Is The Administrative State?

Roger Kimball

“‘The administrative state’ is that quota of political power that covertly fills the vacuum left by the failure of the legislative branch to discharge its obligations.”

Two things are critical. 

• One is the displacement of sovereignty. No longer are the people sovereign. The bureaucracy is.

• The second critical thing is the covert nature of the enterprise. 

The question “What is the administrative state?” can seem difficult to answer because it is not supposed to exist in the first place. You know it only by its actions. You cannot look it up in the statute book, much less in the Constitution. Indeed, the very fact of the administrative state violates any number of Constitutional norms, not least its being a sort of “fourth branch” of government when the Constitution provides for only three.

Edmund Burke touched on an essential aspect of this process in Thoughts on the Cause of the Present Discontents (1770). Criticizing the Court of George III for circumventing Parliament and establishing by stealth what amounted to a new regime of royal prerogative and influence-peddling, Burke saw how George and his courtiers maintained the appearance of parliamentary supremacy while simultaneously undermining it. “It was soon discovered,” Burke wrote with sly understatement, “that the forms of a free, and the ends of an arbitrary Government, were things not altogether incompatible.” That malign co-habitation stands behind the growth of the administrative state. We still vote. We still have a bicameral legislature. But behind these forms of a free government, the essentially undemocratic activities of an increasingly arbitrary and unaccountable regime pursue an expansionist agenda that threatens liberty in the most comprehensive way, by circumventing the law. 

The shadowy nature of the administrative state helps to explain why it is so hostile to free speech and, by the same token, why it tends to be receptive to the deployment of censorship and police power to achieve its ends and stymie the ends of its critics. That is why the rise of the administrative state goes hand in hand with the loss of public confidence in society’s guiding institutions. Talk of “democracy” and “our democracy” is ever on their lips. SWAT teams, prosecutorial abuse, and lawfare are out on the street for all to see. Bottom line: The age of the administrative state is at the same time an age of declining legitimacy in the foundational institutions of civil society.

Officially, the administrative state is not supposed to exist.  Having people talk about the fact that it does exist and that it often pursues ends that are contrary to the ends of the people outside its magic circle of custodians means that by definition free inquiry is a threat to its perpetuation. That is one reason that the administrative state is so hostile to democracy. It is also an important reason why it must be dismantled and returned to the graveyard of rebarbative systems of political obfuscation and bureaucratic tyranny.