Extralegal Power

Wilson IIIn 1887, when Woodrow Wilson was still a mere academic, he wrote an essay that served as a clarion call for administrative power. Revealingly, one of his themes was that reformers faced greater difficulties in modern democracies than they had in the monarchies of the past:

Once the advantage of the reformer was that the sovereign’s mind had a definite locality, that it was contained in one man’s head, and that consequently it could be gotten at. . . . Now, on the contrary, the reformer is bewildered by the fact the sovereign’s mind has no definite locality, but is contained in a voting majority of several million heads; and embarrassed by the fact that the mind of this sovereign is also under the influence of . . . preconceived opinions; i.e., prejudices which are not to be reasoned with because they are not the children of reason.

Exacerbating this problem was the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of negroes.”

Wilson unabashedly elaborated his ethnic and racial fears: “The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes.” And “where is this unphilosophical bulk of mankind more multifarious in its composition than in the United States?” Thus, “[i]n order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.”

Of course, Wilson was not alone in worrying about persuading diverse Americans to adopt progressive reforms, and ultimately it was not merely progressives who would support administrative power. Nonetheless, his fears are suggestive. Progressives tended to favor a sort of power through which they could evade the political obstacles inherent in representative lawmaking. More generally, administrative power often was favored by what could be called the “knowledge class”–a label borrowed from Daniel Bell, and used here to mean not a class in the Marxist sense, but rather the persons who increasingly perceived knowledge as the crucial source of identity and status. Whether or not they had much knowledge, and whether or not they exercised or influenced administrative power, such persons tended to welcome a sort of governance that purported to elevate knowledge as the qualification for office.

The key was to shift legislative power from representative legislatures to administrative agencies. In this way, much lawmaking could be removed from the messy process of representative politics into the rationalizing realm of expertise.

It thus is no accident that administrative power characteristically evades the constitutionally established modes of imposing legal obligation. Under the Constitution, the government can impose legally binding rules only by making law. It can do this by obtaining approval for a constitutional amendment, by getting ratification for a treaty, or most basically by persuading Congress to enact a statute. The pursuit of reform entirely through legislation, however, was exactly what Wilson and so many other progressives despaired of doing. Moreover, representative government involved a political process that much of the knowledge class found chaotic, distasteful, and insufficiently deferential to their understanding of their status. They therefore increasingly welcomed another means of imposing binding rules–not through law, but through administrative edicts.

And this points to the defining characteristic of administrative governance. Precisely because this mode of binding Americans is done not merely through law, but through other mechanisms, it is extralegal. Of course, this extralegal power often has statutory authorization. Even with such authorization, however, administrative governance remains extralegal and an evasion of the constitutionally established mode of lawmaking.

The problem of extralegal power is different from mere unlawfulness. Congress frequently enacts statutes that violate the Constitution, and Congress thereby works through law but in violation of a higher law. In contrast, when the government binds Americans administratively, it does not act merely through the law. On the contrary, it acts through administrative edicts, and it thereby binds Americans extralegally. The path of law through an elected legislative body has thus increasingly been displaced by the opportunity for administrative command.

Although the United States persists as a republic, a very different sort of government has evolved within it, and Wilson’s comments are suggestive of how this has happened. Being extralegal, administrative power has offered a means of evading the constitutionally established modes of power.

 

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He is a scholar of constitutional law and its history, and his publications include Separation of Church and State (Harvard 2002), Law and Judicial Duty (Harvard 2008), Is Administrative Law Unlawful? (Chicago 2014), and numerous articles. Before coming to Columbia, he was the John P. Wilson Professor at the University of Chicago Law School. He also has taught at George Washington University Law School, Northwestern Law School, University of Virginia Law School, and the University of Connecticut Law School.

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Comments

  1. R Richard Schweitzer says

    Acceptance of power:

    Let us consider a different scenario which does not totally displace the Wilsonian or progressivist concepts from a role in the history of the Federal Administrative State, but would rather replace the force of those concepts in their role in the structures, operations and pervasiveness of that State, rather than as a force in its creation.

    With apologies for repetition: A State is an embodiment of authority. That authority may be imposed by physical or ideological force (or a combination thereof); or, by passive acceptance or active consent of those subject to the authority. In the case of its North American colonies, the English Parliament, rather than providing for some form of participation in the assertion of authorities deemed necessary by the predominant political parties, chose to impose, or superimpose, upon the bodies of authority (then existing by acceptance and consent in the several colonies) an Administrative State, externally directed. That administrative state was easily personified as George III.

    As Professor Hamburger has noted in his writings, a principal defense of proposed subjects to imposed authority has been found in the establishment of constitutions. In England that occurred in stages. In what became the United States that occurred as a full reaction. That reaction reflected the motivations of the individuals constituting the polity of the time.

    There are economic and social enterprises (objectives) that require either particularly intense and common efforts of human cooperation, or the imposition of authority to direct and determine human actions (or constraints) in conducting those enterprises and seeking to attain particular objectives. For something like 250 years up to the first decade of the 20th century, the commonality of the sources of individual motivations resulted in those enterprises being conducted principally through civil (non-governmental, non-coercive) facilities.

    The present Federal Administrative State was not imposed by physical or ideological force. It came into being through passive acceptance, positive consent and to some degree from actual demands for the creation of particular enterprises, usually for particular interests, by a polity whose sources of motivations differed significantly from those of preceding generations. Whether Wilsonian-type doctrines (and those of German academic derivative) has much to do with the creation of the Federal Administrative State or not, they have played a significant role in the formation of its internal systems, its operations, and operating effects.

    If we will accept that information is not knowledge; that knowledge is derived through the intellectual perception of those connections and relationships between bits of information which have particular significance in specific circumstances to those possessing that perception, the functions of some “knowledge class” in the operations of an administrative state may only be pervasive insofar as they influence the motivations and activities of the truly predominant class, the managerial class.

    The broadest functions of the managerial class intermediary in nature. A major operational feature of the administrative state in determining the relationships necessary or appropriate to the objectives of an enterprise is the insertion of some intermediary function in as many relationships as can be foreseen that might impact that enterprise.

    It may not be simply coincident that the expansion of the Federal Administrative State followed upon the great shift from proprietary or ownership control of major economic operations and other facilities to managerial control, resulting from the dispersal of ownership of large enterprises and the dispersal of control of “public” facilities such as schools, in urbanization and consolidations.

    The tendencies to belittle managers as “bureaucrats” and managerial systems as “bureaucracies,” will not change the requirements for them in any form of administrative state. If there is to be any change, or return to status quo ante, there has to be a change in the motivations of the polity which created and sustains that state. No attempts at change can be effective without gaining some understanding of the sources of motivations, those preceding and those current.

    • gabe says

      “….the insertion of some intermediary function in as many relationships as can be foreseen that might impact that enterprise.

      It may not be simply coincident that the expansion of the Federal Administrative State followed upon the great shift from proprietary or ownership control of major economic operations and other facilities to managerial control, resulting from the dispersal of ownership of large enterprises and the dispersal of control of “public” facilities such as schools, in urbanization and consolidations”

      Perfect! I assume, however, that this comment is not intended to diminish the influence of the “german school” and its adherents, but rather to augment the argument with a coexistent cause. The two factors together have solidified the admin state and its hold on the people..

  2. gabe says

    ” Moreover, representative government involved a political process that much of the knowledge class found chaotic, distasteful, and insufficiently deferential to their understanding of their status.”

    Rather well said and is descriptive of the Wilsonian era as well as the present day proponents of “smart_______” (fill in the blanks). The poor rubes do not know what is good for them – We on the other hand most assuredly do.

  3. nobody.really says

    It thus is no accident that administrative power characteristically evades the constitutionally established modes of imposing legal obligation. Under the Constitution, the government can impose legally binding rules only by making law. It can do this by obtaining approval for a constitutional amendment, by getting ratification for a treaty, or most basically by persuading Congress to enact a statute.

    It would be useful to have some illustrative examples of administrative power exercised without Constitutional, treaty, or statutory authority.

    In short, does this argument hinge entirely on the rejection of the idea that the legislative and executive branches can delegate authority?

    Although the United States persists as a republic, a very different sort of government has evolved within it….

    I agree. For example, originally the republic enforced slavery. It no longer does.

    This is illustrative of a larger trend that Hamburger finds sinister, and I find encouraging: Government exists to counteract the rule of the strong over the weak. Over time, government has undertaken to defend ever more classes of weakness from ever more categories of strength. This involves expanding the role of government.

    Hamberger observes that the administrate state has expanded roughly 15 years after the expansion of the franchise. He sees this as something sinister. I see it as government gradually becoming responsive to the needs of a broader array of voters. Yes, a decade after women got the vote the nation fell into the Great Depression, and a variety of New Deal programs arose to combat the consequences. How, exactly, did these programs make the plight of women worse off?

    Thus, I don’t find it either intuitively obvious that the non-delegation doctrine should obtain, or that the growth of the administrative state is on net harmful. But I’m looking forward to the discussion!

    • gabe says

      “Over time, government has undertaken to defend ever more classes of weakness from ever more categories of strength. This involves expanding the role of government. ”

      I assume that you then argue that the expansion of government has not created its own “power class.” Are you kidding me?
      Ever try to build a deck on your home? Or try to kill some nefarious little mole destroying your front lawn. Oh, but to do this, you must enter the Kafkaesque domain of the state, where the beneficent ones behind the desk issue permits (willingly, Ha!) for a slight fee amounting to more than the cost of materials. But I suppose I am “weak” and need that assistance – heck, I may smash my thumb with a hammer, after all!

      Or how about this – A county government, without some much as a “by your leave” determines that a small community in the suburbs is now to be classified as “urban density” – no hearing, no discussion, no consideration for the effect on the community or on the lake (Oops, that’s right they also protect the waters of my great state, yeah, right) – just plop down an additional 60% increase in housing – why, because we can”

      Give me a break. In every facet of human endeavor, the State has wormed its way in and now both prescribes and proscribes behavior AND thought. This is what you deem “protecting the weak.” It is borderline fascist! and is representative of the tyranny of experts that regrettably has apparently won sway over the populace.
      Listen to a somewhat disillusioned Walter Lippman who after years of advocating what you currently advocate came to this conclusion:

      “Although the partisans who are now fighting for the mastery of the modern world wear shirts of different colors, their weapons are drawn from the same armory, their doctrines are variations of the same themes, and they go forth to battle singing the same tune with slightly different words. Their weapons are the coercive direction of the life and labor of mankind. [How many times have I heard you seemingly applaud the coercive efforts of the State?]
      Their doctrine is that disorder and misery can be overcome only by more and more compulsory organization. Their promise is that through the power of the state men can be made happy.”

      Da ya tink he was talking about conservatives or was he simply mapping the commonalities between totalitarians and Progressives? I vote for the latter.

      Or here is Walker Percy with a related musing:

      “Percy brings his Roman Catholic faith to bear on the American scene, we find much wanting even in the best of environments. He relentlessly calls into question, as he said, “modern man’s fondest assumption, that he has made the world over for his happiness and that therefore he must be happy.”

      The he herein refers to folks that believe that through State action, we can make anew the human spirit and condition.

      The very object in mind here presumes a near total control over human beings AND it is through the state ( as Richard argues a collection of people with interests, etc) that this transformation is to be implemented. The weak – are you kidding me???????? The state needs the weak – so that it will have something to “make better.”
      How successful have these efforts been. for that matter how successful have all the anti-poverty programs been. Gee, minorities are still in shitty shape – and don’t blame it on racism that convenient refuge for the factually challenged!

      In short, all of our “expert” efforts to eradicate human woe and unhappiness have been for naught. But what is the liberal Progressives response – as my old Drill Sergeant used to say. “In rhyme now boys, We luv’ it- we want more of it, more Drill Sergeant, more. At least, we dumb privates built muscle – can the same be said for the beneficiaries of the Progressive Drill “Nannies” – I think not.

      As for the non-delegation doctrine, there is substantial support both textually and historically (absent the last 40 years of Black Robe pronouncements) for precisely this. Quite simple actually, non-delegation at least gives the appearance that Laws are made by elected Representatives (probably not been the case for a bunch of leap years) not by unaccountable experts and also prevents the sort of Executive action that that Big (boz)Obama has been wont to employ.
      Oops, that must be “hating” to criticize he who can do no wrong!

      think I will have another Peroni – a great Italian beer for anyone interested!!!!

    • R Richard Schweitzer says

      Nobody,

      “Government exists to counteract the rule of the strong over the weak.”

      Disregarding the conflation of “State” and Government, that quote is an expression of the concept of a State as a “purposive enterprise.” Of course, it is not the only such expression – but others specify other purposes.

      The “State” is an embodiment of authority.

      “Since there is no such thing as collective choice, the quest for particular objectives has resulted in continuous additional aggregations of authorities for the many, and ever-differentiating objectives. There is no indication of any deceleration in the trends of those aggregations or of the acceptance, consent to and demand for them. There are, however, some indications that awareness of some economic effects of those aggregations (and there proliferations) is beginning, but not widely understood. There is little evidence of widespread understanding of the social effects of those continuing added aggregations; and the political effects are generally regarded as opportunities for the advancement of particular interests and objectives.” RRS comment to Revisiting Chevron 8/2/2014 on this site

      Once it is accepted that “Government” (the State) is a purposive enterprise all bets for individual freedoms under that kind of government (conducted as an enterprise with a purpose) are off. Governments conducted for ends require the use of means amongst which are the directions and determinations of human conduct and relationships. A major part of human life becomes a means rather than an end.

      That is, in fact the present condition of the modern European state and a fragmenting force in Western Civilization.

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