The Fate of the Administrative State

By IHE Director of the Program on the Constitution and Catholic Social Doctrine Emmett McGroarty, J.D.

Prior to the nomination of Amy Coney Barrett to the Supreme Court, public discussion was already entertaining the fate of the administrative state. President Trump’s two appointees—Neil Gorsuch and Brett Kavanaugh—had expressed skepticism of key, long-standing features of administrative government. Some recent Court decisions had reined in the administrative state; was there more to come? Underlying those discussions, though, are broader issues about the relationship between the citizen and government.

The structure of the modern administrative state has been heavily influenced by progressive theory. In the late 1800s, progressives argued that the world was becoming increasingly complex and that, consequently, the structure of government needed to be reformed. As Woodrow Wilson argued in The Science of Administration (Political Science Quarterly, July 1887), the idea of the state was undergoing “noteworthy change” and there were “every day new things which the state ought to do.” Emboldened by advances in science and technology and the rising social sciences and impressed with sophisticated European bureaucracies, progressives advocated for a new discipline of government administration.

In the progressive mindset, the problems in society ought not be a matter of the discussion, deliberation, and decision-making of politics. Experts in the science of administration could better solve those problems if they had sufficient authority and resources. After being given general goals, experts in the new science of administration would administer government and make crucial decisions.

But the traditional Constitutional structure posed a threat to progressive theory. The Constitution’s acclaimed system of checks and balances would have to be altered. Broad swaths of power had to be transferred to the bureaucrats, who then had to be insulated from interference from other branches and even from the president. As Wilson argued, the bureaucrat “had a will of his own” and would be guided by the science of administration. Likewise, the division of power between federal and state government—state sovereignty—challenged federal bureaucratic hegemony.

Throughout the 20^th century and into the 21^st century, progressive structural philosophy influenced statutes, court decisions, and the implementation of laws.  Congress granted burgeoning power to the executive. It limited or diluted the president’s authority over some agencies. For their part, the courts developed rules of deference to bureaucratic interpretations of certain statutes and regulations and allowed the federal government tremendous leeway to dominate state government.

The early progressives were not oblivious to concern that such changes would undermine the Constitution’s system of checks and balances. To counter that, Woodrow Wilson argued in The Study of Administration (1887):

There is no danger in power, if only it be not irresponsible. But if it be centered in heads of service and in the heads of branches of the service, it is easily watched and brought to book. If to keep his office a man must achieve open and honest success . . . and feels himself entrusted with large freedom of discretion, the greater his power the less likely is he to abuse it . . .  [whereas the] less his power, the more safely obscure and unnoticed does he feel his position to be, and the more readily does he relapse into remissness.

At the heart of it, the debate over structural progressivism is one about the nature of the human person. Does the Constitution reflect human nature and do particular progressive reforms and practices enhance that quality or detract from it? Is human nature such that strong political accountability should flow to the individual through their elected leaders and through government that is closest to the individual as possible? Or should government be centralized away from the people and political accountability substituted with other forms of safeguard? Is government more efficacious with decreased political accountability? If so, are there negative consequences such as increased alienation among the citizenry?

At a minimum, the seating of Amy Coney Barrett on the Supreme Court will encourage greater discussion of these questions, more intensive study of the administrative state, and more challenges to many of the progressive practices and reforms.

Emmett McGroarty, J.D., is the Director of the Program on Subsidiarity and the Constitution at the Institute for Human Ecology.