The Constitution vs. the Bureaucracy.

• Author: Leef, George
• Position: Bureaucracy in America: The Administrative State's Challenge to Constitutional Government - Book review

Bureaucracy in America: The Administrative State's Challenge to Constitutional Government

By Joseph Postell

403 pp.; University of Missouri Press, 2017

One of the most controversial books to come out of the legal academy in many years was Columbia law professor Philip Hamburger's Is Administrative Law Unlawful? (See "The Rise of Prerogative Power," Summer 2015.) In it, he argues that the vast administrative state--that maze of regulatory agencies that now exerts so much power over our lives--is simply incompatible with key elements of our constitutional order. Those agencies combine law-making, executive, and judicial functions that the Founders were adamant must be kept separate. The separation of powers was essential to their plan of limiting government and thereby protecting citizens' liberty and property.

Hamburger's case rested largely on his account of British history, particularly the battles against royal prerogative. Some scholars have argued that he isn't always right in his interpretation of those events, leading them to suggest that his whole thesis on the legitimacy of the modern administrative state is mistaken. They purport to find that early Americans were fairly content with administrative authority and therefore conclude that the fuss over the power of today's agencies is unwarranted.

In Bureaucracy in America, political scientist Joseph Postell of the University of Colorado at Colorado Springs pushes back strongly against the idea that our forebears were not concerned about administrative power. In his broad historical overview, he shows that early Americans were in fact deeply concerned about keeping administration within constitutional bounds through electoral accountability, decentralization, nondelegation, separation of powers, and the rule of law. Moreover, as the administrative state began to develop late in the 19th century, arguments were constantly made that agencies such as the Interstate Commerce Commission had to accomplish their legitimate objectives within our constitutional framework.

While the progressives eventually won out and, especially under Franklin D. Roosevelt, were able to create administrative agencies that combine legislative, executive, and judicial functions under one politically unaccountable roof, many Americans, including some prominent liberals, remained opposed. Today, constitutional arguments over the proper scope of administrative power still ring out in Congress and the courts, and...