AUDIO: “Bureaucracy in America: The Administrative State and American Constitutionalism” An Interview with Prof. Joseph Postell

In late July 2018, JWI’s Deputy Director Garrett Snedeker and Intern Gregory Mill shared a discussion with Prof. Joseph Postell, author of the book Bureuacracy in America: The Administrative State and American Constitutionalism (University of Missouri Press, 2017). Prof. Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs. Postell has written an intellectual history of the administrative state, arguing that, while it has attempted to fulfill democratic principles, the modern administrative state has strayed from the previous accountability of its past. To listen, click on the link above. Below you may find the following:

Garrett Snedeker: Joe, it is a pleasure to be joined today. We’re just so pleased to not only have you here with us today, but we’ve been pleased to have your former student, Greg Mill, with us for this entire summer as one of our interns here at the James Wilson Institute. As part of Greg’s internship, he’s been reading your book very closely and will be directing most of the questions during this interview. Again, we’d just like to thank you so much for your time. It’s a pleasure to have you here with us.

Joseph Postell: It’s great to be here. Sorry, Greg, that you’ve had to read my book so carefully, but hopefully it’s been somewhat rewarding.

Greg Mill: It brought me back to your classes; It was good. I guess we start out, just the subject of your book, just describe it briefly and what the issues are at stake and why you think people should care about this issue?

Joseph Postell: The idea that we have this government with three branches: a legislature that writes law, an executive that executes law, and a judiciary that just merely applies and interprets the law. It’s sort of what we teach people in high school and the assumption that most of the students take with them when they think about what’s going on politically or what policies are made by the government. But what’s amazing is the more you study the details of modern government, how it doesn’t resemble that simple high school civics version of American government. I thought the book was important, because it really tries to explain how significantly things have changed since the time of the founding and the structure of our government. Take almost any policy that the national government makes– whether it’s environmental policy, labor policy, consumer product safety, transportation safety– it all really has been subsumed under the umbrella of this administrative state. I thought that was an important story, a story that not very many people really understand. That was kind of the prompt for getting me to write the book. Then as I really started to look into it, I thought the legal discipline of administrative law that’s grown up around the administrative state also reflected some really curious developments, like this question of deference to administrative agencies or the combination of powers in the same hands in an agency. I thought that this was an important subject not only because of how significant the administrative state is in terms of the policies it makes but also the structure and the constitutional questions raised by those structural renovations that the administrative state has made to the Constitution.

Greg Mill: This issue has been discussed and written about at length. Was there anything in particular you found lacking in the academic discourse that you sought to address, or what does your book do that you think other works on this issue don’t address?

Joseph Postell: I think there has been a lot lacking in our understanding of the administrative state. The amazing thing I think about sort of the state of scholarship on the administrative state is, until 10 years ago, how little there was. The term administrative state seems to have originated, to some extent, in the 20th century. Dwight Waldo wrote a famous book in the 40s called The Administrative State, but then the term sort of just fades away until the middle of the 1990s when a professor named Gary Lawson wrote a really great article called The Rise and Rise of the Administrative State. Even into the 21st century, scholars weren’t really talking about the administrative state very much. This was kind of a wide-open field to write in. I think more important than just the lack of existing scholarship on it, I thought what we did know about the administrative was too superficially grounded. We hadn’t really explored what the Founders had to say about administration and what they actually did about administration at all. Most of the histories of the administrative state or the discussions of it start somewhere in the 1880s or, in most cases, even much later than that. We were missing this whole world of administrative law that provided an alternative to the modern approach where courts are much more important than agencies, where congress and legislatures don’t delegate their power. Part of what I was trying to do in the book was to show that there is a world of administrative law in the traditional sense that exists prior to the progressive era when the administrative state really gets going. I think that’s one of the big things that the book tries to do is to explain to people what life was like before we had an administrative state. I think the other big thing was very few people had traced how the progressives and the conservatives flip flopped in administrative law over the course of the 20th century. We sort of forget this history. Very few scholars have really looked at it carefully. The progressives were huge fans of judicial deference, and they loved the agencies having the independence from the political branches. Then, as the 20th century goes on, and they fear the administrative state more under conservative presidents, they switch and become judicial activists. Then, the conservatives go from their role of being defenders of the courts to being critics of judicial engagement with the administrative state. That was another big part of the story I wanted to tell.

Greg Mill: Yeah, I’d like to talk about this other world of administrative regulations that you talk about. You start in colonial era, but then you go into the 19th century and the regulations that were exist and how that was done. I understand it, one of the cases you’re making is that the Constitution’s structure allowed for actually a somewhat robust regulatory state. What evolved later on was just not really so much in degree but also in kind, it was different in kind. What were the particular features in the early 19th century that you felt were more consonant with constitutional provisions or structure.

Joseph Postell: The balance of all of these different elements is hard to discern, I think, but I think there are three important features of, say, 19th century administrative law that really distinguished it from where we are now. The first was the role of courts. This was something that really was difficult for me to understand. It took a lot of investigation. Courts were actually administrators while they were also judges prior to the Civil War. This typically happened through litigation. Courts would sort of promulgate regulations through their common law authority: their authority to interpret the common law, to find the common law, and promulgate it. It would often result in really important regulatory policies coming through the courts. They almost substituted for administrative officers in the 19th century and late 18th century. The second feature of this is decentralization of power and how so much of regulation and administrative law is done at the local level. — This is why we miss it when we typically study American political development: So much of administrative law is done at the local level: justices of the peace, town selectman, sheriffs, constables, all of those local officials who have most of the regulatory power. Almost all of the studies of the administrative state that look at the 19th century, they don’t even look at the state and local levels which I think is missing so much of the picture. Tocqueville, when he talks about administration in America, focuses so much more on the local officials. He talks about the town selectmen and the justices of the piece, because that’s where administrative power was for him. The third thing is the accountability of administration in the 19th century. This happened one of two ways. At the national level, Congress itself essentially made the laws. There was, of course, some discretion given over to executive officers and patent office and land office and treasury and all of that, but for the most part, Congress was very careful not to delegate law making power or legislative power over to bureaucrats. At the local levels, interestingly, it wasn’t so much the non-delegation principle that constrained the bureaucracy as it was the principle of election. Town selectmen often made municipal law, executed it, and judged it at the same time, but they were always held accountable through elections. The way that we solved this at the lower, more local levels of government wasn’t through a hard, non-delegation principle, but it was more through [a more nuanced approach.]We did allow for more blending of power in most of these jurisdictions. We also ensured that it was accountable through election. I think those are really significant differences between the kind of administration we had back then versus today.

Greg Mill: After that, you discuss that the very theory of how government should be structured started to change with the progressives in the late 19th, early 20th century. If I understand correctly, you think it’s largely rooted in the changes that they made to the understandings of democracy and the way they went back. They didn’t want to go back to direct democracy, and they wanted to change the very idea of it. Could you elaborate on how they sought to change the notions of democracy and how this is connected with the state that they tried to bring in?

Joseph Postell: Yeah, I think the progressives were very successful at redefining democracy. This is something we don’t really stop to think about, but it really does affect the way we talk about it today. Herbert Croly, I think, is the critical figure here. He suggests that democracy is not really about a form of government. It’s not about who votes and who’s elected. Democracy is an ideal. It’s a social ideal that we’re always working towards. This is clearly the root of what you call social democratic parties in Europe. What Croly was arguing was essentially you could have undemocratic in the old sense means to get to democratic ends. This meant that administrative agencies in the modern sense didn’t necessarily have to be worried about their accountability as long as they were pursuing a sort democracy as a goal or as an ideal. They could be insulated from public opinion. Croly and other progressives were much more comfortable with having law making power situated in the hands of unelected officers as long as those unelected officers were eventually held accountable to somebody who was elected. Typically, they, especially Theodore Roosevelt and Herbert Croly, thought the president would do this. As long as there was some sort of backend check on them, it would be okay if they weren’t elected. The key thing was to make sure that they are trained the right way so that they aim at the purpose, the substantive purpose, of democracy, which is to redistribute resources more equitably, sort of plan and organize society on the basis of some rational principle according to social science expertise. That was a really significant revision of democracy. You still see it today where we talk about sort of an undemocratic distribution of economic power. They’re not saying that we don’t vote for CEOs. What they’re really saying is the outcomes are undemocratic. I think that’s the new understanding of democracy that people like Croly and other progressives really tried to ensure would be our understanding of democracy in America.

Garrett Snedeker: If I understand you right, then, the great change was not so much in form, but the great change was in substance. Trying to place a different normative ideal at heart of, I would argue, the American experiment. Our friends at the Claremont Institute make the argument frequently that the progressive challenge is to the Founders rather than to the generation that may have directly preceded the progressive era. It strikes me that if we are to properly understand the challenge of the progressives, it’s in trying to understand the philosophic ground on which they’re making a claim that the American founding has certain substantive faults. Maybe you can elaborate on how the administration in the early periods was reflecting a more charitable view of the American founding, whereas the progressive challenge differed.

Joseph Postell: I think that’s right with a few interesting caveats actually. The progressives clearly attacked the constitutionalism of the founding. They were not even shy about that. They thought that the separation of powers was antiquated and cumbersome and didn’t allow for the kind of modern, efficient government that they wanted to create. What’s interesting is that while all of them didn’t like the Founder’s Constitution, they had very different understandings of what should replace it. Here is one of the interesting things that I try to uncover in the book. A few people who’ve reviewed the book have really latched onto this, is that there were really two camps of progressives in the early 20th century. These were broadly reflected by in the 1912 presidential election, the New Freedom on the one hand, and the New Nationalism on the other. The New Freedom, Woodrow Wilson’s version of progressivism, was still very hesitant about bureaucracy. It didn’t really like the idea that we should vest broad powers in commissions and bureaus that were unelected. On the big question of the day, monopolies and trusts, they still favor the old approach of the Sherman Anti-Trust Act which is, “No industrial combinations to stifle and prevent competition. Use federal attorneys to take them to court when they violate the law, and break up the monopoly.” Theodore Roosevelt by 1912 had changed his mind, actually, about trust busting. This is one of the great twists in American history that very few people have really understood is that the great trust buster, Theodore Roosevelt, in 1912 is the champion of not busting up the trusts. The New Nationalism is all about, “We’re going to accept the new economy, and we’re going to manage and control it through bureaucracy.”

Garrett Snedeker: Is that where the term managerial progressive first originated?

Joseph Postell: Probably not the term, but it was certainly kind of implicit in what Theodore Roosevelt was advocating. A lot of people, including Woodrow Wilson and Louis Brandeis, were huge opponents of Theodore Roosevelt. [Wilson] in 1912said, “We do not believe in having a smug lot of experts in Washington,” … this was one of Wilson’s claims … “We do not want a smug lot of experts in Washington play providence to us.” Wilson, of all people, is condemning bureaucracy. The irony here, as some scholars, especially RJ Pestritto, have pointed this out and Herbert Croly himself did at the time [is] that Wilson wins the election of 1912 resoundingly. What do you get? The Federal Reserve [and] the Federal Trade Commission. Croly proclaimed happily a few years into Wilson’s presidency, “The new nationalism has been enacted by its greatest opponent in 1912.” This alternative progressive view that we could still have a stronger national government without an administrative state, that essentially was around for a very short period of time. I sort of try at least in the book to suggest that this was a viable alternative for progressivism. It’s in some ways very regrettable that progressivism didn’t entertain the possibility of not constructing an administrative state in order to accomplish its ends. Progressivism was not a monolithic movement, especially on the question of administrative power. Over time, it became much more of a pro-administrative movement. In some ways, I think, that was to the detriment of the country.

Greg Mill: Do you have any thoughts on why the progressives didn’t entertain using that older model?

Joseph Postell: Yeah, I haven’t actually thought about this or committed anything like this to writing, but I suppose the most plausible reason off the top of my head would be that the courts were not on their side during this period. This is still the Lochner period where,[while] the myth of the Lochner era, I think, has been debunked by some revisionists–there was still the perception among progressives that the courts were hostile to regulation. Again, I’m not sure that was actually the case. They still saw that the courts wouldn’t really be engines of regulation. They knew that the bureaucrats would be, especially because they’d be the first ones to appoint them to office. Some people have observed this. I think Charles Kesler in particular has talked about this a few times. One of the things about progressivism over the course of the 20th and even now into the 21st centuries has been that it generally is willing to use whatever institutions it can temporarily to accomplish its goals. If the courts are friendly to progressive ends, they’ll take the courts. If the presidency is, they’ll take the presidency. I think maybe that was what was going on in this period as well.

Greg Mill: I’m guessing since the courts weren’t necessarily friendly towards their goals, that’s probably why they start instituting things like deference, trying to push for that. Before we get into the specifics of how they started pushing for that in that era, you note how earlier on under Justice Taney, there was a beginning of some deference that started evolving. Since is the James Wilson Institute, I thought I’d bring up how you make a point that this deference has a root in going to a legal positives theory and a rejection of natural law. I thought I’d just ask, first of all, could you just expand on why you think that it was connected to this legal positive theory? Do you think the ideas of judicial deference are necessarily tied to positives theories?

Joseph Postell: Oh boy, that is a great question. I sort of deliberately only tease in the book at this problem, especially in the section on Taney. My answer, I think, to the second part of that question, is positivism and deference, are those two things intrinsically linked? I think the answer is yes. I think maybe it wasn’t that subtle. The suggestion I was trying to make in the book was Taney and his turn to legal positivism … which I think motivated his judicial deference approach … is in some ways replicated by Justice Scalia when he goes on such a crusade for Chevron deference during the greater part of his career. This brings up, especially a subject very close to the James Wilson Institute’s purview, that great debate between natural law jurisprudence versus judicial positivism. I think the debate about deference, both in Taney’s time and in our own in the late 20th century and into the 21st, I think in some ways corresponds to the debate that we’re having about whether natural law is really a part of judicial interpretation and judicial application of law or not. I think Taney then served as a great warning to those of us who are reluctant to think about the law in terms of natural law. I think Taney made a great mistake, and I think Scalia had come potentially to realize that that mistake was a potential in his own position. I don’t have all of the dots connected in the book. It would be interesting to go back to Taney’s, some of his letters and some of his correspondence and see whether there’s a lot there or not. I think you’re right to raise the question. Is deference really about a deeper problem about how we view the law? That the law is merely just the product of will, and if it’s the product of will, then it belongs to the political branches. If it belongs to the political branches, then the courts have to defer. I think those things are all connected. Those of us who don’t think the law is the product of just will, that it is also the product of reason, have to really think hard about these problems associated with judicial deference.

Garrett Snedeker: If we’re also trying to make the Hamiltonian distinction in Federalist 78, we need to be able to point to some actual judicial reason that’s really within the direct purview of the judiciary. When a member of the judicial branch acts in a role that is singularly possible within that role, what I think causes so many of our conservative friends pause is that when a judge articulates a reason, a judge has to be able to articulate a reason and go beyond the text to offer us sufficient justification because, as Professor Arkes said, “Not everything is contained in the text for a reason.” The text is not meant to be the end all be all. The text is meant to inform and be the basis, but the text by itself will not offer the logical justification for itself. No text can. It relies on deeper principles, and it’s often the only way possible to articulate how a text got to where it got to. To articulate the principles that underlie that text, and often if the judge errs in this, that’s precisely why our system has judicial review but not judicial supremacy. I wonder if maybe, Joe you can help us out with this one, if it’s because we have forgotten that distinction between judicial review and judicial supremacy. We’ve just been living in an era so long in which the Supreme Court and the lower courts, maybe by the sheer volume of cases that they get and the lack of willingness on the part of the President and the Congress to take up these controversies … Has it lost hold in the public mind that Lincolnian understanding of the courts … As I think this was recounted in Harry Jaffa’s book, Crisis of the House Divided, Lincoln could not have stood there in March 1861, put his hand on the Bible, and sworn a fidelity to the Constitution if we believed that Dred Scott was properly decided. He had to believe that he, as a unique actor in the constitutional scheme, could push back on that ruling, and that the Constitution itself was not a pro-slavery document that would uphold Dred Scott.
Does that sound correct … and Greg, maybe you can offer some thoughts on the proper misconception if any on the difference between judicial review and judicial supremacy.

Joseph Postell: That sounds right. The timing of it now I can’t recall right when … Is it his first inaugural address where Lincoln says, “We will have given up our government to that eminent tribunal,” paraphrasing. If we let the Supreme Court do more than just render its decision in that one case, but rather go beyond that and fix all future questions irrevocably, then we’ve given up our government to the courts. Lincoln was able to articulate the difference between respecting a ruling of the court and saying that that ruling is now binding on everybody and we have to basically defer to that ruling on all future questions. I think what we call departmentalism, that each department has an independent constitutional responsibility to interpret the Constitution. I think you can find that reflected in many places in the founding. The Federalist Papers talk about it this way and a variety of other places do as well. I think you’re right. The irony here, though, is that judicial supremacy is sort of a danger, and in some ways its marred our understanding of the proper role of courts. The strange thing is that we have this odd blend of judicial supremacy along with contempt for the courts. Maybe this is the product of too much judicial supremacy is that we start to then really not understand what it does as different from and distinct from the policymaking branches. In administrative law, it’s very interesting because judicial supremacy isn’t really the rule in administrative law. So many judges look at the complicated issues that agencies deal with and say, “Well, I don’t really understand this policy question. They know it really well, and I don’t, so I’m just going to defer.” On questions of fundamental rights or constitutional interpretation, they feel so much more confident. That means in the high profile cases, judges are a lot more aggressive in asserting their power. In administrative law, you see in many cases the opposite. Courts are too reluctant to second guess the expert agencies. In a way that just shows how confused we have gotten about judicial power today kind of as you’re suggesting.

Greg Mill: Yeah, in the area of deference, you spend some time discussing how there for a while there existed on this distinction between law and fact and the judicial review findings. The progressives decided they needed to collapse this distinction in order to further restrict judicial review. Were there any deeper reasons other than just not having the faith in the justices being on their side, do they have any other reasons that they articulated for why they thought restricting judicial review over agencies was critical to their new science administration? And what steps did they start to take to actually implement this?

Joseph Postell: Yeah, so you’ve pointed to the law-fact distinction, which I think was really critical for the progressives. And it’s true that there was a political motivation to that, that they saw the courts as unfriendly to their goals and therefore, they wanted to restrict the scope of judicial review. But there is something quite plausible and persuasive about the progressives’ argument on the law-fact distinction. It is just like the distinction between legislative and executive power; it’s hard to tell where law ends and fact begins. And when you look at certain cases in administrative law, especially some of the workman’s compensation cases that the courts were often dealing with in the 30s and 40s, what does it mean to say someone is an employee? A statute might say, “Such and such, as an employee, is protected by the act.” Is it a factual determination whether newsboys are employees, as one of the NLRB v. Hearse publications? Are they employees, are they independent contractors? Is that a question of legal interpretation or is that merely a factual question? And these were hard cases, and progressives rightly noted, I think, that it was hard to tell whether this was a factual or a legal question. And so, they ended up just calling them “mixed questions,” and gradually, that took hold. There was a political dimension to this too, but I think also, they were right that these are not easy questions to answer. There are a lot of other areas, as you suggest, where the progressives tried to restrict the courts. The one that comes to mind immediately is Standing, and again, here’s an interesting sort of historical thread that runs over into Scalia’s jurisprudence] because Standing Doctrine is invented by the progressives, in large part to keep the courts out of the business of the administrative state. And then it gets revived in the early 80s by Scalia in the famous Lujan case as a way of keeping liberal activists from intervening in the administrative process.
So, I think progressives were working on a variety of fronts. We can talk about procedural and administrative law too as a place where the progressives wanted to prevent courts from second-guessing the decisions of agencies. But on all of these, I find also very interesting, and the book talks about this, is the same principles in administrative law end up coming back around as the conservative position 50 or 60 years later, which is just a really intriguing, fascinating development.

Greg Mill: Let’s go to that development and how they switched. You start talking that with certain presidents, such as Nixon, or because they just began to see their agencies being captured by political interests and political opponents, they began to see that they were being politicized, if that stands correctly. And that was kind of the impetus incorrectly that they decided to use ideas such as Standing, due process and the Arbitrary and Capricious Standard in the Administrative Procedure Act (APA) to get this. I guess we could start with just what are these different issues and how did they use them to now flip the position and get confused courts to start to control the politicization of the administrative state?

Joseph Postell: This gets into these questions of administrative law, which actually are really fascinating to me, and I think, really, people who want to study the policy-making process have to pay very close attention to them. You can divide these issues into maybe four categories. The first has to do with these procedures; do agencies follow the correct procedures of the law prescribed when they make a rule or when they issue an order, engaging in adjudication? And the Administrative Procedure Act was designed, essentially, to impose minimal procedural requirements on agencies. It was sort of a product of the progressive mantra about letting the experts be free from legal constraints, do their job, and apply their expertise. And for a long time, that’s sort of how administrative law is understood and practiced. And then, all of a sudden, the DC circuit in the 1960s and 70s starts to say, “Well, we need to make sure the agencies are doing the right things.” This is really somewhat entertaining, they start to use the language of partnership, that the courts are now going to partner with Congress. So Congress will pass a statute and then the courts will partner with Congress to make sure the agencies are implementing that statute correctly. And one of the ways you can do this if you’re a judge, without just blindly second-guessing the agencies’ subsistent decisions, you can say, “Well, you didn’t follow all of the correct procedures. You issued notice, but you didn’t include all of the studies that you’re using to make your rule when you issued a notice in your notice and comment rule-making. So, we’re going to send your rule back on those grounds.” And so, the court start in the procedural world to stack procedure on top of procedure; and at the same time, in another category of administrative substantive review, and the Administrative Procedure Act, as you noted, says, “Any decisions by an agency, which are arbitrary, capricious, otherwise not in accordance with law, have to be sent back to the agency.” How do you know when a decision is arbitrary, capricious? It was, again, generally understood under the APA that a decision had to be really foolish in order to meet that criteria; to be arbitrary and capricious, there had to be a really egregious decision. But, once again, progressives, wanting to insert the courts into these battles, started to expand the definition or arbitrary and capricious, so if you didn’t include the right studies or if your decision didn’t seem to follow a rational process, you could have a decision sent back on those grounds. But the big area of administrative law, which this happens, is in the scope of judicial review of legal interpretation. And this is where the famous, or infamous, depending on how you put it, new Chevron doctrine starts to emerge. The reason there was a Chevron doctrine that emerged demanding judicial deference to agencies’ interpretations of law was because, in the 60s and 70s, again, the DC circuit dramatically expanded judicial oversight of agencies interpretive practices. And, in all of these cases, administrative law can be a very dense and complex world, and you can get overwhelmed very easily. But you can almost understand the whole of it in the 60s and 70s as progressives wanting to expand judicial supervision of the bureaucracy. And they largely accomplished that by, in some ways, betraying their earlier principles about how the administrative state should operate. And I think as you suggest, the big factor that drove a lot of this was the presidency; there was an emerging political science literature that said, “The Democrats will always have Congress and Republicans will always win the presidency.” That’s pretty outdated, I think at this point, but it was just generally understood that Republicans had sort of advantages in presidential elections and Nixon is just the critical figure in all of this. After Nixon, I think everyone on the left says, “We can’t trust the agencies to just do what’s in the public interest anymore as we define it. We need to now get much more engaged in checking the power of the executive.”

Greg Mill: What do you think was the impetus for conserves now to tackle the administrative state? Was it purely reduced to political reasons or, such as, just a growing distrust for judges among conserves? Or do you think there are ideological reasons that were more primary?

Joseph Postell: I think that a lot of it had to do with, again, reaction. So much of administrative law is driven by the side of the progressives’ reaction against Nixon and reaction against the alleged capture of the bureaucracy by conservatives. So much of what defined conservative administrative law for a long time was just reaction to the progressives turning to the courts. You started to see conservatives be more distrustful of Chevron. Recently, as Obama used his discretion to make policies in immigration and a whole host of other areas through executive order.

Garrett Snedeker: That’s fair, yeah, often, you’ll hear on the left that the overreach by Obama was a response to the overreach of the Bush administration in international affairs, right? The “imperial presidency,” in concentrating more powers in the executive. For George W. Bush, it was certainly in the domestic and international terrorism front, and then the prosecution of these alleged terrorists. But the response among conservatives to what Obama was doing is that it was purely within the president’s authority to do this, since the president had, historically and constitutionally, had purview on international affairs and on preserving the state in times of war and peace. But classically, areas more under the privy of Congress, and we saw that over and over again on, like you said, immigration, Obamacare and the like.

Joseph Postell: It’s interesting, more study can be done on this, so I’ll just venture in it as a hypothesis that should be tested. But I think the willingness of both sides in the political debates today to flip-flop their institutional allegiances is a relatively new development in American politics. And this is really intriguing, this gets us a little bit into parties, rather than the administrative state, but there’s an interesting passage in Federalist 49, where Madison says, “We can’t do periodic conventions for revising the constitution,” sort of implicitly responding to Jefferson’s famous proposal, because parties would align with different branches of government. There would be a legislative party and an executive party, and eventually, the partisan division over which branch should get which powers will just throw the whole separation of powers out of whack. Somebody will get too much power at some point, and he thinks it’s going to be the legislature. So what Madison suggests is that parties will align with branches, and, at first, we think that that’s kind of wild, until we look at American history. What’s the debate between the Federalists and the Democratic Republicans, the Jeffersonians, about? They think that Hamilton is a monocrat and is expanding executive power, and the Jeffersonians are associated with Congress. Then what happens, in the Whigs versus the Jeffersonian Democrats, is almost entirely about the executive legislative dispute or which brand should be the predominant branch. And even throughout the 20th century, Republicans generally disfavor the presidency, while Democrats generally favored it. It’s only, I think, recently that you started to see that institutional-based party system break down. I still, I guess, venture that as a hypothesis more than anything else, but I think there’s something interesting there. And maybe part of the confusion that reigns in the administrative law today is because people are not really tied to institutions in defending them, but they’re much more interested in outcomes. Snedeker-based administrative law is bad administrative law.

Greg Mill: Interesting. I think I’d like to just switch gears for a little bit and discuss something that I think is a fairly big part of your book. That’s the President’s power of removal. And it seems like it’s a fairly significant theme in your book, and I’d just like, first, just having you elaborate on what the idea is, and why it is or why it’s not such an important question in our constitutional structure?

Joseph Postell: Right. So the removal power is really about whether the President has control over what we call the executive branch, or what we could also call the administrative state. If the President can’t fire his Secretary of State, if the President can’t fire his Secretary of Treasury, that person enjoys, essentially, autonomy and therefore, when that person makes decisions, it’s often times a statute will say, “The Secretary of Treasury shall carry out these functions. The Secretary of State shall carry out these functions.” So if Congress gives that power to, say, a department or the responsibility for a program to a department, and the head of that department can’t be fired by the President, you, essentially, now have created sub-units of the executive that are not accountable to the chief executive. Congress might have both principled and un-principled reasons for doing that, and I think the answer is probably that both reasons prevailed; Congress might not like the President, and might want to keep control of power, and it might know that if it gives power to an independent commissioner, it can then, through its appropriation powers, control the implementation of the law. But, also, there could be this progressive argument about expertise, right? We can’t subject this person to the President’s removal power, because we need them to be apolitical, right? Impartial, and you hear this language all the time. This is an important constitutional question because in the constitutional system, it seems to require that the President take responsibility. And this was the word used at the time of the founding, over and over again, responsibility, that the President has to be held responsible and has to be responsible for implementing the law. There’s a clause in the Constitution that says, “The President shall take care that the laws be faithfully executed.” How can the President do that and how can the people hold the President responsible for execution of law if the President can’t even control the subordinate officers inside the bureaucracy? In the sort of era of pre-progressive administrative law, this question was contested, but ultimately, settled in favor of the President’s constitutional authority to remove. There are few, as the book describes, a few sort of departures from that, especially during the presidency of Andrew Johnson, the Tenure of Office Act, which tries to take away from Johnson sole removal power. But nobody really questions whether the President has this authority. Today, we’re in the opposite world, thanks to a case called Humphrey’s Executor, which was written by, actually, Justice Sutherland. So I know I have to tread lightly here, but Humphrey’s Executor was a case that went in the opposite direction that said Congress could create these, as the opinion said, quasi-legislative and quasi-judicial officials, the powers that they yield as quasi-legislative and quasi-judicial, and that that meant they didn’t have to be accountable to the executive. And now we have a whole host of people in, say, the Consumer Product Safety Commission or the National Labor Relations Board, The Federal Reserve, who are, what would we call, career or apolitical civil servants. That has created, essentially, room for unaccountable policy-making in our system; which, I think, threatens some really important constitutional principles.
So, again, this is one of those legal controversies that doesn’t seem that important if you just focus narrowly on it, but it raises larger questions about whether our system is functioning as it was intended.

Garrett Snedeker: Maybe you can tell us a little bit about the constitutional questions that arise when you have somebody that would have been put in place in a position in which it’s far from clear what a line of succession would look like? For example, the CFPB, who has authority to name a replacement? That’s just one fine example of an agency where the person at the head of it might be at odds with the head of the executive branch, and what do you do in those circumstances?

Joseph Postell: For all of the lamentation about the deep state, there is a sense in which you create the conditions for sort of internal division inside the government itself when you create these kinds of offices. It’s probably not as significant of a problem if Congress isn’t delegating massive amounts of authority over to these officials. But, in the case of the CFPD, as you mentioned, which, essentially, has the ability to control, regulate, even out of existence, any financial product or service that is not understood to be fair. Once Congress creates that kind of a mandate and gives that kind of discretion to an administrative officer and then insulates that person from accountability to the President, you’ve created the possibility of the government itself to be not in line with what the people have expressed, in terms of their will at the last election. And I think if you read the debates at the Constitutional Convention, they understood this problem very well, this was not something that they didn’t foresee. They knew that if you set this kind of a system in place, it would create all kinds of problems. So, we really only have to go back to these debates to understand that our system wasn’t designed to have this kind of an outcome and that this really is a threat to the system that the founders created.

Greg Mill: Is this scenario where you think proponents in administrative state have evolved? Have they evolved in this issue, flipped back and forth as they have in other issues, or is this scenario where they’ve remained kind of faithful to their original ideas?

Joseph Postell: On the legal question, they have not changed their minds. So progressives have almost always, especially since Humphrey’s Executor was decided in 1935, have always defended the legality of creating these kinds of positions. It’s interesting that FDR himself was not so sanguine about those kinds of officers, and the phrase, “Headless fourth branch of government,” actually originates from the Brownlow Committee Report, which was from within his brain’s trust. So FDR would be one progressive who thought that the President should have control over this entire system, and Theodore Roosevelt probably is another example. But for the most part, progressives have not questioned the legality of setting up these kinds of offices. Practically, they have experimented much more since then, and, again, what you saw in the 60s and 70s in this huge revolution in administrative law was the creation of new kinds of agencies that are much more accountable. So a good example of this would be the EPA; the EPA was, essentially, created in 1970 and it wasn’t created as this independent regulatory commission whose members were not accountable to the president, but, actually, was created as a politically accountable agency. So sometimes progressives, on practical grounds, will go back to the old executive agency model, but they’ve never questioned the legality of setting up these independent agencies, like CFPB.

Greg Mill: Now, if I’m remembering from your book correctly, I think you mentioned how people like William Howard Taft, who was a strong proponent of trying to argue in favor of the President’s power to remove officers. And I believe you mentioned he wasn’t exactly a purist on this issue. I was just wondering, do you think it’s possible, under a unitarian understanding of the executive power, to coherently hold a general right of the president to remove officers but not allow for it in select circumstances?

Joseph Postell: In other words, can there be some room for the creation of sort of civil service or a neutral public employee? Or do they all have to be cronies of the President? I think there’s a two-part answer to that question. The first part of it is, depends on how you define officers of the United States. So the constitution, and this has been litigated very recently in the Lucia v. SEC case, officers of the United States can be, if they are principal officers, so-called, not only by the President and the Supreme Court, provides advice and consent. If they are inferior officers, they can be dominated by the President courts of law or the heads of departments. And then, presumably, there’s this other category of people, which who would not be officers at all.

Garrett Snedeker: And now we include administrative law judges in that category.

Joseph Postell: And now inferior officers, which is, I think, again, a great win for those of us who believe in constitutional government and want to see the administrative state brought back within constitutional limits. The Lucia case was a great win for us. But I think not every employee of the EPA is an officer; the IT guy at the Department of Commerce isn’t an officer of United States, and therefore, can be nominated through some sort of civil service appointment. So there are going to be not a lot of non-officers, or who would just be employees of an agency, who aren’t going to have to go through that process. The other part of the answer, I think, has to do with legality versus practicality. I didn’t go into as much in the book as I could have, but it’s an interesting story of the civil service throughout American history that, through the first, say, 30 or 40 years, removals were actually quite rare. And by rare I mean, when there’d be a new President of a new party coming into office, 10% of the federal administration would be thrown out approximately. Meaning that Jefferson was willing to say, “If you are competent, you’re not just going to be wholly tossed out of office simply on the basis of partisan affiliation.” So what the founders seem to do is to say the President has the legal right to fire anybody that the President deems necessary to fire, but that as a matter of practice, as opposed to a matter of law, the President’s going to retain anybody who’s not egregiously outside of the priorities of the President. And I think that was a very good settlement and it allowed for the professionalization of this class of administrators, but it also kept the President, ultimately, in charge. And I thought that was a good balance, the way that they worked this out and practiced, and something we could learn from today.

Greg Mill: This issue of distinguishing between legal and practical, I know Justice Scalia would like to say at odd times, “Things are maybe a bad idea, but that doesn’t mean that they’re constitutional or not constitutional.” And so, but this probably the issue where another area of conserve judges seemed unwilling, they seem to just accept the fact that the President, his powers are limited to removal. Why do you think this is an area in which conserve judges are, again, is it a doctrinal reason that they’re just unwilling to just question, even Humphrey’s Executor, instead of just working within it?

Joseph Postell: Yeah, I have no way of confirming this, and it has never been confirmed to me, but people would sort of suggest that Justice Scalia never reconciled himself to Humphrey’s Executor. And yet, he, in effort, was willing to challenge it, expressly, in writing opinions like in Morrison v. Olson, which people say was one of his greatest dissents he ever wrote. I think a lot of it has to do with the role of precedent and, for whatever reason, conservative or, say, Republican-appointed or however you want to define this group of justices, really are not willing to upset long-standing precedents that laid the foundations for the administrative state, whether that’s the non-delegation area or removal power area or these other decisions. Even when they think the answer was wrong, they’re not particularly willing to go back and undo damage. I think there’s something healthy in that impulse to not just willy-nilly overthrow longstanding opinions, but, if over a long period of time, you’ve investigated and you think that the answer is incorrect, I think maybe they could be more willing to question those opinions and continue to make the case, over the long run, for going in a different direction.

Garrett Snedeker: Sort of what Justice Thomas has done on the court, just trying to cultivate an understanding that there is an argument, it’s a compelling one. Even if I’m not joined by my colleagues on this understanding of non-delegation doctrine, that’s not going away.
I may be long gone before it’s revisited, but the mere fact that we can have this debate is enough to show that this is far from settled.

Joseph Postell: I think there’s something liberating about being able to be the only voice on the court, because you’re free really to say what you think. I think the other justices wonder if they joined this opinion, and we get to three or four people saying, “Let’s revisit the non-delegation doctrine,” does that get a little too close for comfort? I’m with you. I think that Justice Thomas is bravely questioning on grounds … He has the evidence, and he has the arguments to back him up, but he’s clearly willing to revisit these questions in a way that other justices aren’t. It’s not clear to me that Gorsuch is not increasingly with him in this endeavor though. It’s going to be interesting to see. There’s been articles written about the rise of originalist administrative law and Thomas at the head of it. Other justices now starting to take it very seriously as well. Maybe that will change in the near future.

Greg Mill: We can just go on discussing the issue of non-delegation. The idea that the legislature may not delegate authority to really anyone. If I’m not mistaken, you argue that the core or the heart of the doctrine non-delegation is in the idea of representation and the idea that a Republican government requires lawmakers to be as Madison says, “Have immediate dependence on and intimate sympathy with the people.” Could you elaborate on the idea Republicanism requires or entails … at least as accepted by the founders … a non-delegation understanding doctrine.

Joseph Postell: There are two ways to look at this. One that you’ve just suggested, and you quoted from Federalist 52 there, one of my favorite quotes about this relationship. Madison uses the world, “An immediate dependence on and an intimate sympathy with the people,” in that frequent elections are the only policy to get that result. Madison actually favored direct election of senators at the Constitutional Convention as well as direct election, obviously, of members of the House. There was something about the legislative branch in particular as having this sort of fundamental power to create binding law that made Madison believe it had to be done by immediately elected representatives. This was in part because the only way you can ensure they’re going to make the laws you want them to make is if you elect them. The second part of this argument comes from this question of the social compact. What is the nature of this compact that we’ve created in the constitutional system? There’s a really good book on this that’s just come out. A Great Power of Attorney, I believe is the title of the book … The Fiduciary Constitution. The notion here is that just as in agency law, a principal creates an agent by vesting that agent with power. There’s a sort of fiduciary responsibility by the agent not to sub-delegate that power. I think you can read essays talking about the social compact that come to the same conclusion. There’s a great essay at the very end of the Federalist Papers, Federalist 84, which we all know from reading it is about the lack of a Bill of Rights. Why there is no Bill of Rights in the Constitution. Hamilton says something in that essay. He says, “As the people surrender nothing, they retain everything, therefore they have no need of further reservations.” He’s talking there about why we didn’t surrender the power over the press to the government, therefore we don’t have to reserve the freedom of speech. But what he says here is very interesting, “The people surrender nothing and retain everything.” What he means by that is that the people, when they delegate power to the government, never alienate that power. They merely delegate it. The person who has received a delegated power, therefore doesn’t actually have it but merely holds it as an agent. If that person then does not have the power, that person cannot delegate power. The only person who can delegate power is the person who possesses it. An agent never possesses it, merely holds it in trust. They say this over and over again about the nature of the social compact. The logic here I think extends to legislators. They hold their power in trust. They never actually possess legislative power, because the people surrendered nothing. I developed this argument, actually, in an article in the Missouri Law Review. It didn’t quite make it into the book which they cut mercifully from it because it was already long. This argument’s actually in that essay. I think the fiduciary aspects of the Constitution outlined in this other book, Great Power of Attorney, make the same case. The argument that non-delegation is rooted in separation of powers which is typically when the Supreme Court talks about non-delegation it says, “The non-delegation doctrine is a separation of powers principle.” I think that actually gets the argument wrong. Even Justice Thomas who is almost always right on these constitutional questions has talked about it as a separation of powers principle. I think the non-delegation doctrine is much more of a principle of the social compact. It’s a principle of republicanism. Understanding it that way, I think, helps us to ground it in the right principle and to understand it correctly.

Garrett Snedeker: Just to build off that, do you think it’s just a principle of republicanism, or do you think it goes deeper than that? Do you think maybe it goes to the heart of any kind of legitimate government has to be founded in the principles of government by consent? The old ladder it used to be. What’s the source of the law? The legislature. What’s the source of the legislature? The Constitution. What’s the source of the Constitution? Government by consent. What’s the source of government by consent? It’s the reason and nature at the heart of the thing. You can’t have any of those other substantive goods. You can’t have the trappings of democracy. You can’t have the trappings of republicanism without that affirmation of the principle of government by consent. That’s not in the Constitution, but everything is predicated upon it.

Joseph Postell: I think, defined correctly, republicanism entails so much of what you’ve just described … that republicanism isn’t just about electing representatives, but it’s about the relationship of the people to government that fundamentally is derived from consent. That actually, your specification of this, is really quite important. Under, say, agency law or fiduciary law, if a principle delegated to an agent the power to sub-delegate, the agent then gets the power to sub-delegate. What some people have said is, “Okay, well if all of this is just based on this fiduciary principle in the Constitution, if the people passed an amendment to the Constitution saying, ‘Congress may now delegate its legislative powers to whoever it deems necessary in the public interest,’ under the analysis of republicanism, that amendment would itself be unconstitutional. It would be illegitimate because it would essentially destroy republicanism.” The argument is that the people cannot give their agent government the power to sub-delegate, because that would be to alienate their very sovereignty. That is a very important difference from the great power of attorney argument which suggests that any time you set up these arrangements, you can create sub-delegation power if you specify it in the arrangement. In government, you could never specify in the arrangement sub-delegation power because you can never alienate your own power.

Garrett Snedeker: I’m reminded of after the Civil War, there were probably thousands, maybe even tens of thousands, of former slaves who, confronted with the possibility of agency–taking a hand in their own development,–were terrified. They were choosing to reenter servitude, because they just didn’t know anything else, and yet they couldn’t. Why is that? Because it just runs contrary to the understanding of a rights bearing being to voluntarily enter a state of servitude again. It doesn’t comport with the American experiment or then, even when we go even further than that, doesn’t comport with the idea of living in a regime that respects government by consent.

Joseph Postell: Interestingly, if you really read Locke carefully on this, he’s saying the exact same thing. Under the principles of natural law, you can never alienate your rights. Your rights are inalienable. Part of your rights that you can alienate is the right to govern yourself. What you’ve just described would have been contrary to natural law to agree to enter servitude, because your liberty can’t be alienated. Governments may not respect your rights, but that’s another question. You cannot alienate them. You cannot consent to give up your life or your liberty or your property. Locke was very clear about that. He says you can’t do that. He has these four famous limits on legislative power, and that’s essentially the first one. Government can’t be absolutely arbitrary over the lives of its people. The fourth one is the non-delegation doctrine. Locke himself is sort of explaining this as derived from natural law. This was a really deep foundation for this non-delegation principle.

Greg Mill: Now we’ve already kind of touched on the precision of distinguishing between executive power interpretation and legislating, actually making laws. If I’m not mistaken, Scalia argued for deference at least partially because he didn’t think that you could really make the line pristine. You couldn’t have a pristinely precise line. We can clearly … I think it was Gary Lawson … we could say that if Congress passes a law to tell one agency to make everyone go to make good and nice, we can easily say, “Well, that’s clearly delegating.” It does at least at first appear to get more muddied as you get into the realities of practical life. Do you think that there is a principle distinction between the two that would allow, say, judges or congressmen in those areas that appear gray on the surface to know when it’s actually delegation or when it’s actual interpretation? Or is it just simply some subjective opinion where some judge thinks, “Oh, this is too vague. I can’t stomach this amount of vagueness.”

Joseph Postell: You’ve raised the question that almost always gets people stuck whenever they have to start thinking about the non-delegation doctrine. Where’s the line between just a regular unconstitutional delegation of power and an unconstitutional delegation of legislative power? I don’t think there’s an easy answer to that question. One thing that I’ve started to think about very recently is– and again, there’s a tremendous opening for research here–the state governments apparently have much more robust non-delegation doctrines than the federal government. This is true today. If you talk to state supreme court justices or if you talk to practitioners of state constitutional law, they all know that it’s much easier to win a non-delegation case at the state level. One interesting way to look at this might be to look at the rules that state judges have followed in these non-delegation cases.

Garrett Snedeker: Have you read Jeff Sutton’s book by any chance?

Joseph Postell: That would be a good place to start.

Garrett Snedeker: Judge Jeffrey S. Sutton of the Sixth Circuit Court of Appeals.

Joseph Postell: Maybe you can derive some interesting principles or interesting line drawing principles there. Another way to think about it is just as you’ve suggested. There’s no magic line, and as soon as you step across it, you’ve entered into delegation land. But rather, there’s a certain amount of discretion in this gray area. Once you get too close to goodness and niceness statutes, then you’ve entered the realm of delegation of legislative power. I think you could point to so many of the statutes we have today and really raise questions about the non-delegation doctrine. Take the Federal Communications Standard, right? To issue licenses if the public interest necessity … if it serves the public interest or necessity or something like that. These public interest phrases in the law … or what is an unfair financial product or service that the CFPB can regulate? When you get these kinds of phrases where it’s just really clear that we don’t know what is actually entailed, if it’s so vague that it has no meaning whatsoever, I think those are relatively easy cases actually. I don’t think it would upend our entire world if Congress went back and had to specify what an unfair deceptive practice was in the statute. I think by now with lots of experience in regulating financial products and services, Congress could probably specify much more precisely what it seeks to regulate or what it wants to FCC or the CFPB to regulate. I think you’re right that the line drawing exercise is really difficult, but I also think that there are clear statutory provisions that even if you have a sort of conservative or narrow definition of what a delegation is, it probably still is a delegation.

Greg Mill: If you were to give advice on how we would start to … for practical purposes not just ideals of where we want to go … but what steps judges or legislators can take to start to slowly go towards a better version. You could also describe where we should be going, what direction. What practical purpose do you think we can take doing those steps?

Joseph Postell: I think there’s a lot of interesting and good work being done to meliorate administrative law today. We talked about the FCC v. Lucia case which tried to bring more very powerful officials … the administrative law judges in these agencies … within the purview of the Constitution’s appointment clauses. You could find areas of the bureaucracy that are unaccountable and try to bring them back into accountability. The question of independent regulatory commissions and opening up this issue of the removal power, again, I think is an important thing that people should be doing. Keep asking the question about the removal power and Humphrey’s executor and whether it’s time to revisit that case. I think the other thing that’s gotten a lot of attention, and I think it might not be too long before we see changes in this area would be this very large realm of judicial deference to the administrative state. Chevron deference and deference to agencies interpreting their own organic statutes. I think more and more we are starting to realize that there’s something wrong or potentially a little bit problematic about this kind of a deference doctrine. There are ways in which those sort of meliorate the administrative state while still not disrupting what we have done to significantly. I think that’s one approach. Victories in that area would be things that I think we could celebrate. There is also the more sort of significant questioning of the whole administrative state itself starting from the delegation of power to the bureaucracy and running through a lot of these arrangements about combination of powers. In the long run, I think one of the things that people who really believe in these constitutional principles need to think about is taking the power to judge and situating it back in independent article three judges and courts. There is a lot of judging that goes on inside of an administrative agency. This was one of the most controversial aspects of the administrative state during the New Deal. They actually were not as focused on non-delegation during the New Deal. They were very concerned about the creation of judicial power inside agencies. The relegation of judges to just judicial review of an agency’s power of adjudication. There were interesting developments in continental Europe that went in the other direction. In Germany, they created independent specialized courts to do all of the work of administrative adjudication. There are problems associated with that as well, but I think those of us who are really concerned about these combination of powers and the problem of bias in these agencies could start to think about alternatives to agency adjudication. Questioning in the long run things like the non-delegation principle and the power of agencies to adjudicate their own disputes … Those, I think, are projects that we need to continue to think about. We need to continue to study and try to understand the right direction we could take.
Garrett Snedeker: What about the role of Congress, Joe? In Mike Uhlmann’s review of your book he said none of this is possible unless Congress … Nothing of substance is really possible unless Congress wants to claw back a lot of the duties that it’s willingly ceded to the administrative agencies. What would that look like from the perspective of Congress taking back control of what once was within their purview?

Joseph Postell: I think what a lot of people have noticed over the last century as Congress has gotten increasingly out of the picture is that it was actually in Congress’s interest to have all of this happen the way that it happened. Contrary to the expectations of the founders, the legislature would not be an impetuous vortex sucking all the power into its own hands but rather … what’s the opposite of a vortex … spewing the powers outside of itself rather than bringing the powers.

Garrett Snedeker: Centripetal? Or is it centrifugal? I always get them confused.

Joseph Postell: That it would actually spew powers outside of itself rather than suck the powers into its orbit. This happened for reasons that are sort of in the basic self-interest of the legislators, that they could take credit for passing vague statutes, pass the costs and the consequences onto the bureaucracy, and get reelected at higher and higher reelection rates. It’s actually a rare thing to see a Congress that wants to take this responsibility. In a way, we have that increasingly because there are people in Congress who want to reassert the control of the people over this behemoth that we’ve created. The problem now is not so much one of will which I think increasingly exists in Congress to reassert itself. The problem is now one of means. How do you give Congress the means to recapture the bureaucracy that it’s created? I think that requires a lot of creative thinking by a lot of folks. My next book, I’m hoping to try to address that question, so I’ll just give you a short preview of it. I think you need leadership to develop inside the legislative branch in order to allow Congress to be directed towards that end. If the problem is one of means, then we need leaders inside Congress who can help Congress get back into the game. For me, the only leaders we can find are the party leaders who should have, I think, greater influence over the direction of the Congress. If we don’t have them inside Congress, we’ll have them outside Congress. The president and these other institutions will take much more control over our system. I think Congress is really the center of all of this. I think there’s a lot of work that needs to be done to understand how Congress could be brought back in, but I think that’s the next step.

Garrett Snedeker: I would add to that, not just leadership but expertise. The Congress needs the type of expertise that people have either spent years and years working in the administrative state or probably for years and years beforehand worked on these committees that used to have control over these areas. They were largely lifers. They were definitely on the speed dials of every lobbying organization or trade association that existed. They had to know who the key players were. I think that as you’ve devolved the Congress’s job in these areas, you’ve brought forth a class of staffers for these committees who, because by the very demands of the job had to grapple with these issues in such an intimate way, they themselves are just not up to the challenge.

Joseph Postell: Yeah, the area in which we had that committee expertise, say the middle to close to the end of the 20th century in Congress, where the committees really ran the show. They had legendary oversight hearings. Agencies shuddered in the face of committee hearings. The only downside to that was that it didn’t really do anything to constrain the administrative state. Rather, the committees found it easier to gain the benefits of the administrative state through their access that the committees gave them. The expertise question in Congress is critical to this, but the problem with expertise in Congress if it’s not disciplined by the leadership is that it will form connections with the administrative state that will cause it to just redirect the administrative state’s activities for its own ends. Agricultural policy is a clear indication of this. Agricultural committees will be populated with people from those interests, and they will use their power over the agricultural bureaucracy to direct goodies back to their constituents. Without the leadership disciplining that process, you’ll have what political scientists call those iron triangles that developed in the middle of the 20th century. Congress can run the administrative state, and it did during that time. But when it ran the administrative state, it actually made things in some ways worse. That’s why leadership is such a critical aspect of this question.

Greg Mill: In the current political climate were in whether with judges or parties in Congress, are you optimistic that they can actually make progress in the areas that are needed? Or do you think it’s an intellectual fun endeavor we’re engaging in, but it’s not a winnable war?
Joseph Postell: It can be both, I suppose, but I tend to be actually relatively optimistic. I was at a conference at College of the Holy Cross in April, and I presented my argument about the administrative state. There was another historian who has also written about the administrative state on the same panel. A student raised his hand and asked us the question at the end of the panel or at the end of our remarks, “How many agencies would we have to abolish if we went back to the Constitution?” The historian responded, “Every single one of them.” I responded, “Absolutely none of them.” I actually believe that’s true. The regulation of the economy is not really the problem that the administrative state presents. Regulation has a very deep foundation in the principles of natural law and in the principles of common law and in the principles of our constitution. The problem of the administrative state is not that we’ve created a regulatory state. It’s that we have put that regulatory power in the hands of institutions that are constitutionally suspect. I think you’d have to have an Environmental Protection Agency and an Occupational Safety and Health Administration and a Food and Drug Administration even if we got rid of the administrative state, because you always have to have administration. Administration is a central constitutional power, but administration in the old sense was the power to investigate, the power to prosecute, the power to enforce. Not the power to legislate, not the power to judge. We would still need regulation, and I’m actually very much in favor of food and drug regulation. I’m very much in favor of workplace safety regulation and in favor of environmental protection. I think we need those things, but there’s a difference between saying we have to have regulation and saying we have to have an administrative state. I’m relatively optimistic that we don’t have to dismantle the entire federal government in order to get back to the Constitution. In fact, that would be not doing what the Constitution requires. What we really need to do is set up an administrative system that is truly administrative in the old sense. I think we’re increasingly understanding the problem. Twenty years ago we understood it a lot worse than we understand it today. We’re increasingly making maybe small steps but progress in getting the administrative state back under control. I’m actually relatively optimistic that we’re heading in the right direction on this, and that there’s still a lot of progress that we can make.

Garrett Snedeker: Great, thank you so much, Joe, for your time and for such a fun and substantive interview.

Joseph Postell: Thank you.

Garrett Snedeker: We look forward to spreading this to our listeners, and we hope very much that we can see you again soon.

Joseph Postell: That would be great. Thanks for having me on.