'Administrative State is THE Leading Threat to Civil Liberties of Our Era.'
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- Опубліковано 8 сер 2024
- Professor of Law at Columbia University Law School Philip Hamburger discusses the rise of the administrative state and what, if anything, can be done to reduce its power.
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"The administrative state is the leading threat to civil liberties of our era," says Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School and author of the recent books, Is Administrative Law Unlawful? (2015) and The Administrative Threat (2017). "We have a system of government in which our laws are made by the folks that we elect, and these laws are enforced by judges and juries in the courts, but we have within that an administrative state, a state that acts really by mere command and not through law." Hamburger argues that by reducing the role of elected officials to set policy, the administrative state, which has grown rapidly since World War II, disempowers blacks, women, and other minorities who have only recently gained full voting rights and political power.
Before he left the Trump administration, former White House Chief Strategist Steve Bannon famously vowed to "deconstruct" the administrative state-the collection of bureaucrats, agencies, and unelected rule-making bodies who decrees and diktats govern more and more of our lives.
And many of the president's picks at places such as the FCC, the FDA, the EPA, and the Department of Education seem to be doing just that: cutting regulations and policies that come not directly from Congress but from administrators who decide, say, that the FCC has the ability to regulate the internet as a public utility, and that so-called net neutrality is a good idea. Trump's appointee to the Supreme Court, Neil Gorsuch, is widely understood to be a critic of the administrative and some of best-known ruling challenged the validity of rules laid out by federal bureaucracies.
Reason's Nick Gillespie sat down with Hamburger to discuss why the administrative state is unconstitutional, and what, if anything, can be done reduce its power.
Music "Integration Blues" by Javolenus
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The government that governs best governs the least.
*GOVERNMENT N. A GANG OF THIEVES WRIT LARGE; A TERRITORIAL MONOPOLIST OF COMPULSION AND ULTIMATE DECISION-MAKING (JURISDICTION) WHICH MAY ENGAGE IN CONTINUAL, INSTITUTIONALIZED PROPERTY RIGHTS VIOLATIONS AND EXPLOITATION IN THE FORM OF EXPROPRIATION, TAXATION, AND REGULATION OF PRIVATE PROPERTY OWNERS; THE GROUP WITHIN SOCIETY THAT CLAIMS FOR ITSELF THE EXCLUSIVE RIGHT TO RULE EVERYONE UNDER A SPECIAL SET OF LAWS THAT PERMIT IT TO DO TO OTHERS WHAT EVERYONE ELSE IS RIGHTLY PROHIBITED FROM DOING, NAMELY AGGRESSING AGAINST PERSON AND PROPERTY* (sic) cited Murray Rothbard def. 1, /r/libertarianmeme all def.
That a good enough definition for you Hans?
Hans in a nutshell, it's a means to get what you want at the expense of someone else. But overall it's an institution that is meant to maintain to the highest degree, the standard of living of the common people. This is done through a complex and, at times, arbitrary Network of bureaucratic laws and requirements.
People in government have their own interests. Administrative agencies are somewhat unique because of their rule making ability, but all people in government want government to expand and the legislature can't write the rules. Blaming ruling making is like blaming children for running wild when parents abandon them -- it's inevitable. The only solution is to make government smaller, much smaller.
Thank you, Nick- this is pure gold! I've never before heard of Philip Hamburger- he's truly brilliant, as are YOU! Viva Rothbard.
The biggest problem is public sector employees exerting (what I’ve coined as) “CONTROL WITHOUT (PERSONAL) LIABILITY.” I propose a doctrine to help curb/ keep administrative bureaucrats/ public sector employees in check that includes:
1. Demonstrating “rough proportionality” between the control and regulations they exert and professional/ personal liability they take on.
When Congress was debating the Administrative Procedure Act of 1946, Representative Pat McCarran (a Democrat from Nevada) submitted the Bill, who also gave us some insight into its purpose, when he said (from the Congressional Record, March 12, 1946):
We have set up a fourth order in the tripartite plan of government which was initiated by the founding fathers of our democracy. They set up the executive, the legislative, and the judicial branches; but since that time we have set up a fourth dimension, if I may so term it, which is now popularly known as administrative in nature. So we have the legislative, the executive, the judicial, and the administrative.
Perhaps there are reasons for that arrangement. We found that the legislative branch, although it might enact a law, could not very well administer it. So the legislative branch enunciated the legal precepts and ordained that commissions or groups should be established by the executive branch with power to promulgate rules and regulations. These rules and regulations are the very things that impinge upon, curb, or permit the citizen who is touched by the law, as every citizen of this democracy is.
Senate bill 7, the purpose of which is to improve the administration of justice by prescribing fair administrative procedure, is a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government. It is designed to provide guarantees of due process in administrative procedure.
The subject of the administrative law and procedure is not expressly mentioned in the constitution, and there is no recognizable body of such law, as there is for the courts in the Judicial Code.
Problems of administrative law and procedure have been increased and aggravated by the continued growth of the Government, particularly in the executive branch.
Philip Hamburger is a national treasure. Be sure to read his magnificent opus "Law and Judicial Duty"
He is absolutely correct. The board of nursing has destroyed careers.
Only seen two videos from this channel, this being the second.
Subscribed. I'm a hardcore conservative, btw.
The Doctrine of Primary Jurisdiction, upon which a defendant may argue that a court not adjudicate "the regulated activity/person[s]" where a issue disputed is within the agency's particular field of expertise, (record) asserting a substantial risk of an inconsistent ruling. The trial court that "deferred to agency" has exclusive jurisdiction and should invoke duly and proper raised PJ doctrine and either, stay a proceeding or call for dismissal. As applied to a principle of equal protection; moreover, "fairness" (ICC fair rates-for train travel under ICA) it's institutional/historical, where a statutory interpretation is the contested substantive issue--nonetheless, a strategy is only a band-aid and does not approach the substantive due process/procedural deficiencies--also a strategy of the administrative agency.
Hm... is this 10 minute Ad for "How I Created a Multiple Six-Figure Business From Home" an omen for this video on 08NOV17?
What's growing faster? The Administrative State, or all other human activity?
I thank you mr Steve Bannon . Normal people have their children within the reach of the administrative state and they will jail you and take your children if you speak up against any agency. It's dangerous, and we deserve a judiciary that holds these administrative actors accountable
No one will be able to "get rid" of the administrative state. All those laws will not be fleshed out in Congress, nor can they be, Congress would never be able to make headway. They are not experts in the fields they vote on. Hence, ideally, the Administrative State is supposed to be the locus of subject matter experts, which is why the Judicial system will default to them (even though that is circular reasoning really). So, 1. Are there any examples of danger for regular citizens? If so, name some and the results. 2. What can be done to limit their power? 3. Heritage Foundation Project 2025 isn't trying to deconstruct it, they are trying to cut steps out so the President doesn't have to nominate heads of departments to be confirmed by the Senate, but will just do it directly. That sounds dangerous no matter who does it.
We need a new bill of rights to limit the power of the Administrative State. Please give a list so that we can start the political process.
There is a naivete here. Professor Hamburger takes for granted that the State wants to expand, by any means necessary, including the expansion of the administrative state. The Constitution gives room for Congress to expand via an administrative state...
Uhm much of his book, which he promotes here, argues that the Constitution, in fact, does not give Congress the room to expand via the administrative state. So I would suggest you are the one who is naiive at least because you are making a comment without knowing the whole story.
Philip is the best
That's an interesting observation at 11 minutes. Andrew Napolitano pointed out the same thing in regards to the aftermath of the civil war. He said before the civil war the federal government never had a relationship with the individual.
ThisnThatPackRat It's all a game to them to see how much longer they can kick the can down the road. The general public so far hasn't managed to do anything to stop them and I don't see that changing with their attention spans.
ThisnThatPackRat I have hope that things can turn around for the better. We just need to engage these people more persuasively.
So what is your alternative?
Say the people want clean air.
Politicians pass a Clean Air Act, but then what?
How do you enforce it?
Do the regulators get congress and the president involved in the minutiae of every decision or move they make?
12:00
Good, relavent interview questions. Not expounding on the nuance of an administerative state vs administration of congressional decree. Likewise the discussion of the AS can't omit the problem of chronic congressional dysfunction. Congress assembled the AS. No president can disassemble it, only not acknowledge its existence.
What do you mean by not acknowledge it? Is it something that gives power or are simply stating that they don't acknowledge it?
What state throughout history hasn't been an 'administrative' state? All states must be administrated, no way around that. The correct term should be the 'bureaucratic' state. Bureaucracies have taken over the state, bureaucracies in tandem with powerful corporations who use government bureaucracies to protect and further their interests at the expense of the public interest. The corporate-bureaucratic state is the root cause of the steady erosion of freedoms we've been witnessing throughout the industrialized world, not just America or Europe.
Nick's line about Trump's blood sugar was well delivered. I guffawed over that!
Do you mean to say it was an emotionally charged overly-sensationalized unprofessional remark?
Power. Who interprets laws set by Congress. Too many agencies, but who really controls the Agencies ?
Guess who,, the Billionaires. So more agencies, less agencies. The Billionaire dictates how these laws are put into action. Certainly if the President has ultimate power to fill these agencies (EPA) with Loyalists.
It would be cool if he wore a t-shirt that said Vegan on it.
the administrative procedure act isn’t for private Citizens, it’s for gubment workers and those who work for the agencies!
Northern pipeline construction co v marathon pipeline….private rights must be adjudicated in a Art 3 court NOT in these Art 4 tribunal of a foreign jurisdiction
Section 11 of administrative procedure act:
Examiners shall be removable by the agency in which they are eiployed only for good cause
PeRsOn AND PARTY.-"Person" includes individuals, partner-ships, corporations, associations…..
See 26 usc 3121(e) and 42 usc 411(b)(2), section 211 of the social security act for the definition of individual……a resident of Puerto Rico which is a US citizen. If you were born in the 50 states you are not a U.S. citizen peon with no rights because you’re a state Citizen
This IS what led to the DEMISE of this country.
Buy Bitcoin
it's about 4 years when it escaped the thousand dollar capital markets, I was looking in to it then. And even then, you might out earn buy buying btc instead of buying electricity. On the other hand, as we'll approach more's law limits on the mining chips, shelf life on the gear might jump from 3 months to 18 months or so and make it more accessible to smaller operators.
Ugh, another FCC stab for "regulating the internet" through "utility regulations".
I've heard this uninformed trope too many times and I would hope the people at Reason would prefer to understand the details of an issue and form their own opinion rather than merely repeating industry talking points.
To start, I would suggest looking into what common carriers are and the difference between internet *service* and internet *content* .
I understand bureaucracy is monarchical and opaque, but corporations are also tyrannical structures where all power is concentrated in the hands of the owner and as I see it they are now holding more power than the government. how do we achieve real liberty where we're truly free from government and individuals who own all the resources forcing us people to be dependent upon them for our basic survival.
I really appreciate ur insights on hegemony of the state but u don't talk about the hegemony of the individual who owns the means of production, or is individualistic hegemony over the masses is acceptable in a free society.
soapbxprod That question, that you partly answered, is the product of indoctrination, misinformation & political jabbering. Which is not the same thing as retardation. Thus, it is a GREAT question, & an opportunity to set the record straight.
durjaneeya shankit in a FREE MARKET there can be no Hegemonic control nor force. But when the Gov steps in between (laws rules regulations) the free markets are corrupted, Liberty is lost, & Hegemony occurs, & is encouraged (thus it rolls out into the cultural as you described)
But even free markets need some "rules", do they not? Such as those against collusion, price fixing, etc. I worry more about the social side of things, so I will be the first to admit I haven't looked a ton into this. I too think it's a great question and soapbxprod is an example of the kind of person w/ attitude that drives people away from learning more.
I find it difficult to believe that monopolies are state sanctioned in cases where there is a significant infrastructure investment inherent to the business. Though I can't think of a case of decentralized infrastructure setup so I couldn't say that wouldn't work - it just seems naive to think that everything would "just work" if the market was left to its own devices 100%. I'm all for minimal intrusion - and I do mean as little as possible - but it just seems another example of so many moving parts it's difficult to really gauge what would truly happen.
Appreciate your responses, capt
But these owners do not have power over you as the state does - and there is competition as opposed to a coercive monopoly
durjaneeya shankit competition, competition, competition..... will keep corporation in check .
go gulls
Shiggi Shiggi Sha Sha
Not really interested in video and I don't care what anyone says, but.......this dudes name is really hamburger.