Last week’s Liberty Forum exchange between Joe Postell, Gary Lawson, and Mark Seidenfeld on courts and the administrative state is an early, thought-provoking contribution to a large-ish debate that we should and, I hope, will have. It raises a basic question especially for those who (like Joe) argue for a more muscular, less deferential judicial role in the administrative state: what exactly do we want courts to do?
Joe Postell, Mark Seidenfeld writes, wants to mobilize courts for libertarian values—a smaller, more limited government. To the extent that this is in fact Joe’s position, Mark’s central objection is right: that can’t be the role of the courts, either as a normative matter (the size of government is, presumably, a political decision, within constitutional bounds) nor even as a conceptual matter. Joe celebrates F.A. Hayek’s embrace of the German Rechtsstaat and its independent administrative courts as a model. There is indeed much to like about that model (more in a sec). But it has nothing to do with small government. It has to do with lawful government—which can be very, very big. For proof, see Germany.
As it turns out, even the idea of lawful government is deeply ambiguous so far as the role of courts is concerned—far more ambiguous than Hayek, for one, lets on in his Rechtsstaat ruminations.