Why the Administrative State Must Be Abolished, Not Reformed
It is not only unconstitutional, it is antithetical to our most basic principles
Among the most interesting possibilities under the incoming Trump administration is his appointment of Elon Musk and Vivek Ramaswamy to head a new “Department of Government Efficiency.” While this will not be an official department, it will advise the president on how to significantly reduce the size and inefficiency of the administrative state. Musk has claimed the effort could reduce annual federal spending by as much as $2 trillion.
As welcome and necessary as such an undertaking may be, it does not nearly go far enough. In fact, its stated mission ignores the underlying problem with the administrative state: it is both unconstitutional and antithetical to America’s most important founding principles.
“Unconstitutional” is a much lower hurdle that the administrative state nevertheless fails to clear. The Constitution provides all sorts of powers that contradict founding principles. Chief among these is the Commerce Clause, which, however libertarians might like to think is limited strictly to prohibiting the states from imposing their own tariffs, is quite expansive. And the federal government still manages to abuse that power exponentially beyond its limits.
Much of the administrative state was built upon dubious interpretations of various commercial and personal behaviors as “interstate commerce,” including in one particularly ridiculous case producing milk on one’s own farm and consuming it on the premises.
Not only does the administrative state exercise power never delegated to the federal government in the first place, it does so in a wholly unconstitutional manner. The Constitution delegates the legislative power exclusively to Congress. Congress has no authority to re-delegate this to another branch of the government, but this is just what it has done in each case where it has authorized an executive branch agency to write enforceable rules.
Calling this legislation “regulations” instead of “laws” does not magically transform it into something else. Any written code either legally requiring or prohibiting human behavior is legislation. And delegation of the legislative power in whole or in part to another branch of the government would require a constitutional amendment.
In many cases these administrative agencies also usurp judicial powers by settling disputes in their own courts, presided over by administrative law judges. They thus unite the legislative, judicial, and executive power in a single agency, nullifying virtually all the Constitution’s structural checks on tyranny.
But even if the administrative state in its present form were remotely constitutional, or altered in form to become so, it would nevertheless be antithetical to liberty. The stated goal of every one of the agencies in the administrative state infringes the most basic rights of the individual according to the “general principles of liberty and the rights of man in nature and in society” according to Jefferson.
Contrary to progressive dogma, people have a right to buy and sell food the government deems unhealthy and drugs the government doesn’t deem safe, to pay and earn wages the government thinks are too low, and to do virtually everything else the administrative state sets out to prohibit.
“To secure these rights, governments are instituted among men,” wrote Jefferson. Indeed, even the founders unnecessarily complicated the issue by breaking up Locke’s elegant property theory of the role of government into myriad, mostly unenumerated rights. The man himself put it most unambiguously:
“…and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.
The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property.”
While these are the founding American principles, fought for and died for, and damn the consequences, the consequences of applying them are always superior to compromise. In every case, “regulation” as we know it today eliminates competition for large corporations, resulting in American consumers paying higher prices for the same or worse products. The history of regulation in America supports this assertion without exception.
From the meat packing myth to climate change, in every case where it is proposed a government agency “regulate” a market, lower cost competitors are crippled or eliminated to the benefit of large, higher cost corporations. “You must not buy this meat; it isn’t safe, you must buy this more expensive meat from our donor friends.” Today, “you must not drive these cars; they aren’t safe (for “the planet”). You must purchase these more expensive cars from our donor friends.”
In every case, the meat is safe. It’s just priced too low for the donor class to compete with.
Indeed, contrary to what virtually every American alive was taught in school, regulation during the early Progressive Era did not save American consumers from “robber barons” and their trusts. Rather, it was the so-called robber barons themselves who asked the government to regulate their industries – for decades – to protect them from the smaller competitors who constantly undercut their trusts and kept prices low for consumers.
There is no tradeoff here. It isn’t a choice between liberty and safety. The safety offered by the administrative state is an illusion. In almost every case, the agencies prohibit safer, lower cost alternatives to benefit privileged, “approved” products. That was the story with the EpiPen controversy, Covid, and a host of other examples going back a century.
The Progressive Era was not an innovation. It wasn’t even progressive. It was regressive. It sought to take classical liberal America back to the pre-revolutionary colonial system imposed upon the colonists by the British, where Parliament’s various Navigation Acts empowered “swarms of officers” to wield legislative, judiciary, and executive power arbitrarily, “to harrass our people, and eat out their substance.”
The Progressive Era, culminating in the New Deal and Great Society, was nothing less than a counter-revolution that changed the form and purpose of the United States government drastically for the worse. There is an opportunity now that may never come again. As Thomas Paine put it, “we have it in our power to begin the world over again.”
It is not enough to reform the tyrannical, unconstitutional, administrative state. It must be ripped out by the roots and replaced with nothing.
Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?