People often criticize the vast size and scope of the bureaucracy in the United States, but there is another critical issue involving the administrative state that is seldom discussed: the breakdown of the rule of law. The procedural rights that are necessary for a strong rule of law and are so often taken for granted are not guaranteed in the administrative state today.
Strong rule of law is one of the necessary elements for a free and virtuous society, and for a free and functioning market. There are many definitions and nuances in the principle of the rule of law, but the central tenets require that laws apply to all people equally and are enforced consistently and fairly. Proper rule of law precludes arbitrary enforcement, inaccessible or unclear laws, and inconsistent application. The breakdown of rule of law leaves political, religious, and economic freedom vulnerable, endangering the very foundation of our republic. Where rule of law is weak, tyranny and oppression reign.
In an essay for the Wall Street Journal, Charles Murray describes the weak rule of law in the administrative state:
If a regulatory agency comes after you, forget about juries, proof of guilt beyond a reasonable doubt, disinterested judges and other rights that are part of due process in ordinary courts. The “administrative courts” through which the regulatory agencies impose their will are run by the regulatory agencies themselves, much as if the police department could make up its own laws and then employ its own prosecutors, judges and courts of appeals.
Those who feel unfairly targeted or wrongly convicted have little recourse in a system that does not have an independent judicial process or a fair procedural framework.
Economist John Cochrane’s essay The Rule of Law in the Regulatory State echoes Murray’s concerns. He catalogs violations of traditional rule of law hallmarks: decades long approval processes, arbitrary and sporadic prosecution of similar cases, cases based on weak evidence and unknowable standards, and even blatant political targeting. The judicial system we see in many bureaucracies is starting to resemble the legal practices of Venezuela or the 18th century French monarchy more closely than the system laid out in the Constitution.
This is not to say that the bureaucracy abuses their power to the extent of the leaders of corrupt governments, but that it could. Cochrane, after highlighting examples of abuse or misconduct in administrative proceedings, warns:
My point is not so much the current [scandals]. My case is that the structure that has emerged is ripe for the Faustian political bargain to emerge, that the trend of using regulation to quash political freedom is in place and will only increase.
Cochrane’s concerns are not unfounded: in many of the examples he outlines, there are suspected political motivations. Did the Obama administration delay the approval of genetically modified salmon to avoid political fallout? Are bureaucrats using regulatory threats to coerce banks into following rules that did not pass through Congress? There is a strong argument to be made that political coercion in the administrative state is already underway, and, without implementing fair procedures and checks on power, we can expect to see similar future abuses.
As the bureaucracy expands in its scope and rule-making power, the danger of abuses of power grows with it. A 2016 report by the Competitive Enterprise Institute (CEI) measured a total of 94,246 regulations added since 1993 and a total of 178,277 pages in the Code of Federal Regulations as of 2015. The report also found that for each law Congress passed, 30 rules were written by agencies. Considering that state and local bureaucracies also have their own set of regulations, the bulk of the law-making, and much of the enforcement and prosecution of rule breaking, currently falls to administrative bodies. If the United States is to have strong rule of law, it must ensure that its constitutional procedural rights exist within bureaucratic jurisdiction.
The danger of weakening rule of law in the United States is imminent, and the threat to our economic and political freedoms is real. The dismantling of order and procedural rights under bureaucratic rule is already underway, and we are beginning to see its consequences. If Americans truly wish to preserve and promote freedom and prosperity in our country, it is imperative that we fight for the rule of law in the administrative state.
