In a review for the Claremont Review of Books, Prof. Michael M. Uhlmann, a James Wilson Institute Senior Scholar, analyzed the commentary of former White House Counsel Peter Wallison on the administrative state. Prof. Uhlmann traces the rise of the administrative state through the 20th century and the now growing critique of its policies. The administrative practices of the New Deal era have led to a system of governance where members of Congress busy themselves with distribution of benefits and delegate large segments of their legislative responsibility to agencies of the executive branch. Along with Wallison, Prof. Uhlmann argues for the courts to fulfill their duty as the “Guardians of the Constitution” and to hold the Congress accountable to their Constitutional duties. Further, he points out hope for change. The changes in the Supreme Court, due to long efforts of scholars and practitioners, have given us the best chance yet to reverse this delegation to the executive branch some of the core duties of the legislature.
A few excerpts from the review:
“When Congress is allowed to delegate without effective constraints – which is very close to what now prevails – three things happen at once: Congress becomes indolent, ignorant, and flabby in establishing policy standards: agencies that receive vaguely defined or open-ended grants of policy-making authority are more inclined to become capricious in the exercise of their rule-making powers; and it is much more difficult to hold either donor or recipient politically accountable.”
“But he [Wallison] is absolutely correct that allowing Congress to evade its responsibility to the electorate by abandoning its constitutional duty is a recipe for tyranny. And he is also correct in urging the judiciary to apply more rigorous non-delegation standards against the lazy whimsies of the legislature.”
“The New Deal is not going to be undone in any radical way – but where is it written that we must accept as permanent arrangements put in place nearly a century ago? Who are the real reactionaries, those who wish to preserve in amber the ideas of Woodrow Wilson, Herbert Croly, and FDR, for example, or those who, based on experience, see the flaws in those ideas and wish to present a better way forward?”
“Although this term’s results were less than reformers hoped, the good news is that the Court is at least beginning to address constitutional reservations about the administrative state, and that it is very close to having a solid majority to ensure a constitutionally desirable result. In short, those who admire the separation of powers and wish to see it revived should be much happier than they were only a few years ago. This is a great tribute to those scholars and practitioners who have labored so long to restore constitutional limitations on officious government action.”
Read the full review here.