Joseph Postell

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs. His research focuses primarily on regulation, administrative law, and the administrative state. He is the editor, with Bradley C.S. Watson, of Rediscovering Political Economy (Lexington Books, 2011), and with Johnathan O'Neill, of Toward an American Conservatism (Palgrave Macmillan, 2013).

Erasing the Fundamental Commitments of American Constitutionalism

Is Administrative

Philip Hamburger’s Is Administrative Law Unlawful? is a timely and major contribution to the most significant constitutional crisis of our time. As a work of scholarship it will inform and inspire future thinking on the administrative state for years. This book, however, will greatly contribute to an emerging consensus about the perils of the administrative state, and help shape the constitutional response. Therefore it may well be the most important book that has been written in decades. Scholars have been denouncing the modern administrative state as incompatible with American constitutionalism for years, but nobody has made the argument as thoroughly and…

Read More

Architects of Manipulation

Simpler

Alexander Hamilton, in the opening essay of The Federalist, famously declared that the American experiment would determine “whether societies of men are really capable of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” In his new book, Cass R. Sunstein implicitly asks the same question: Are we really capable of governing ourselves through our own reflection and choice? Contra Hamilton, Sunstein concludes that we are destined to rely on accidental circumstances, namely whether “choice architects” create an environment in which we will choose correctly. Simpler: The…

Read More

Courts, Agencies, and Constitutionalism: Further Thoughts

I’m very thankful to the Liberty Law site for offering me this opportunity to discuss some fascinating and important issues surrounding our modern administrative state. And I appreciate both Professor Lawson’s and Professor Seidenfeld’s responses to my essay, as well as Professor Greve’s contributions to our debate. Administrative Law Orthodoxy: Perpetuating the Status Quo Professor Seidenfeld’s central proposition is that I am guilty of a heresy. I depart, he argues, from the “premises shared…by the general community of scholars who study the administrative state.” Specifically, his view is that my argument “rests on strictly libertarian assumptions.” My libertarian assumption, he alleges, is…

Read More

More Responses

Deference to Whom?

Joseph Postell’s timely call for reconsideration of the proper judicial role in overseeing the administrative state[1] deserves serious attention. He is right that rule-of-law advocates (a term that I prefer to “conservatives”) often have so much suspicion of courts that they do not think carefully about the possibility that there is too little rather than…

Read More

Courts Should Ensure a Deliberative and Transparent Administrative State

When I agreed to respond to Professor Postell’s essay, I thought that we would be operating on premises shared, not only by him and me, but also by the general community of scholars who study the administrative state. Upon reading his essay, however, I realized that my understanding was incorrect. Postell’s essay rests on strictly…

Read More

Should the Courts Tame Our Administrative State?

Opening the New York office of the National Recovery Administration. Credit: Britannica

Multiple scandals involving myriad federal agencies have placed the administrative state front-and-center in many Americans’ minds. Though the scandals involve overreach by specific agencies, they raise broader and more profound questions that extend to the entire federal bureaucracy because the institutional problems are systemic. Are administrative agencies with massive powers compatible with a free society? How can we hold them accountable? Can we have agencies without abandoning the rule of law, checks and balances, and other cherished institutional ideas embedded in our constitutionalism? When the political process fails to promote limited government and individual rights, turning to the courts seems natural.…

Read More

Responses

Deference to Whom?

Joseph Postell’s timely call for reconsideration of the proper judicial role in overseeing the administrative state[1] deserves serious attention. He is right that rule-of-law advocates (a term that I prefer to “conservatives”) often have so much suspicion of courts that they do not think carefully about the possibility that there is too little rather than…

Read More

Courts Should Ensure a Deliberative and Transparent Administrative State

When I agreed to respond to Professor Postell’s essay, I thought that we would be operating on premises shared, not only by him and me, but also by the general community of scholars who study the administrative state. Upon reading his essay, however, I realized that my understanding was incorrect. Postell’s essay rests on strictly…

Read More

Courts, Agencies, and Constitutionalism: Further Thoughts

I’m very thankful to the Liberty Law site for offering me this opportunity to discuss some fascinating and important issues surrounding our modern administrative state. And I appreciate both Professor Lawson’s and Professor Seidenfeld’s responses to my essay, as well as Professor Greve’s contributions to our debate. Administrative Law Orthodoxy: Perpetuating the Status Quo Professor Seidenfeld’s central…

Read More

Searching for the Administrative State

Creating the Administrative Constitution

It is common to find discussions of the administrative state in the scholarly works of history, political science, law, and economics.  However, it is uncommon to find a definition of the very concept -- “administrative state” – being treated in these discussions.  The result is a great deal of confusion and misunderstanding regarding what we are discussing.  Does the administrative state simply refer to the explosion of regulation and bureaucracy in the twentieth and twenty-first centuries?  Does it refer to the extent of discretion given to administrative personnel?  Or is it something altogether different? If the term “administrative state” merely referred…

Read More

The Relentless Dilemmas of Progressivism

Transformation of American Democracy

The 1912 election fundamentally transformed American politics.  This transformation and the events which led to it are the subject of Sidney Milkis’s excellent book Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy.  Milkis’s book is both lively and profound, a joy and an education at the same time.  The key thread that runs throughout Milkis’s tapestry is the paradoxical result of Theodore Roosevelt’s candidacy: the joining of mass democracy – replacing party politics with candidate-centered elections and a plebiscitary presidency – with a centralized administrative state where commissions make policy outside of the direct influence of public…

Read More

Is the Hayekian Response to “Libertarian Paternalism” Sufficient?

Joshua Wright and Judge Ginsburg offer a powerful critique of the Behavioral Law and Economics (BLE) movement on several fronts, but primarily based on the threat BLE poses to individual liberty.  They provide a helpful and straightforward history of the rise of Behavioral Economics, which applies a simple premise that runs contrary to neoclassical economics: people do not always act in their rational self-interest, and cannot reliably be described as utility maximizers.  BLE builds on this insight by applying it to law and public policy.  The result is “libertarian paternalism,” which relies on enlightened experts to frame choices for us…

Read More

More Responses

The Paternal State and the Police State

Joshua Wright and Douglas Ginsburg have given us a very good analysis of many of the problems inherent in normative behavioral law and economics (especially in the form of “libertarian” or soft paternalism) from the perspective of liberty.  I am in basic agreement with them. Thus I shall simply elaborate some further criticisms of this…

Read More

Putting Our Bourgeois-Bohemian Rulers in Their Place

Let me begin by saying that I’m far more unimpressed by the contribution of behavioral economists  than even Wright and Ginsburg. The perception that people aren’t hardwired, so to speak, to always act — in their own interests has only been challenged by those who have made the error of imagining that all human behavior…

Read More

Nudging for Liberty

In this essay I will begin by disagreeing with the authors on two counts.   First, I will argue that defenders of liberty might want to think long and hard about specific issues, such as retirement accounts, where liberty and the free society might be enhanced through nudging.  Put another way, short of a libertarian winning…

Read More