Help us improve in just 2 minutes—share your thoughts in our reader survey.

"From Administrative State to Constitutional Government" by Joseph Postell (2012)

From Ballotpedia
Jump to: navigation, search
New Administrative State Banner.png
Administrative State
Administrative State Icon Gold.png
Five Pillars of the Administrative State
•Agency control
• Executive control
• Judicial control
•Legislative control
• Public Control
Click here for more coverage of the administrative state on Ballotpedia.
Click here to access Ballotpedia's administrative state legislation tracker.

"From Administrative State to Constitutional Government" (2012) is an article by American political theorist Joseph Postell arguing that the administrative state is unconstitutional. Postell examines the origins of the administrative state during the Progressive Era and follows its evolution over the course of the 20th century. He later proposes measures to bring the modern administrative state into agreement with the Constitution and suggests decentralizing regulatory authority to reflect the local regulatory approach of the Founding Fathers.[1]

HIGHLIGHTS
  • Abstract: In the introduction to the article, Postell provides the following summary of his argument:


    "The administrative state is an assault on constitutional principles—government by consent, the separation of powers, and the rights of individuals—that liberals and conservatives hold dear. The key to reform is that it be grounded in a proper understanding of these principles, not in the hope of immediate short-term gain or narrow self-interest. If we begin from constitutional principles and can communicate those principles and their relevance to the public in a clear manner, the reforms envisioned in this report are not too far from our grasp. It is high time that Americans work together to forge an alternative to the administrative state so that we preserve our constitutional principles for future generations."

    • Author

    Joseph Postell

    Joseph Postell is an American political theorist, professor, and author. He is an associate professor of politics at Hillsdale College, as of January 2023. From August 2017 through August 2020, he was an associate professor of political science at the University of Colorado at Colorado Springs and Associate Director of the Center for the Study of Government and the Individual. He was a 2017-2018 visiting fellow in American political thought at The Heritage Foundation. He is the author of Bureaucracy in America: The Administrative State's Challenge to Constitutional Government. According to his faculty profile page on the University of Colorado website, Postell's areas of interest include political theory, American political thought, the presidency, the U.S. Congress, administrative law, and public administration.[2][3][4]

    Below is a summary of Postell's education and career:[2]

    Academic degrees:

    • B.A. (2001), Ashland University
    • M.A. (2004), University of Dallas
    • Ph.D. (2010), University of Dallas

    Professional positions and honors

    • Associate professor, Hillsdale College
    • Associate professor, University of Colorado at Colorado Springs, 2017-2020
    • Visiting fellow in American political thought, The Heritage Foundation, 2017-2018

    "Part I: What is the Administrative State?"

    The first section of Postell's article presents his definition of the administrative state. He describes the various structures of administrative agencies, ranging from those overseen by the executive branch of the federal government to independent agencies. He identifies four characteristics that define the administrative state: (1) the concurrent exercise of executive, legislative, and judicial functions within administrative agencies, (2) the delegation of executive power, (3) agencies staffed by individuals described by Postell as impartial experts, and (4) agency adjudication procedures that do not recognize due process rights. Postell concludes this section with a historical overview of the administrative state that examines its origins in the Progressive Era and its growth over the course of the 20th century.[1]

    Postell offers the following definition of the administrative state:[1]

    “
    The term 'administrative state' or 'regulatory state' is used frequently but often inaccurately. To what does it actually refer? Broadly

    speaking, the term “administrative state” describes our contemporary situation, in which the authority to make public policy is unlimited, centralized, and delegated to unelected bureaucrats.

    There are different types of agencies and departments that make up the administrative state. ... Determining the exact total number of these agencies and departments is a monumentally difficult task, but there are several dozens of them, each with massive power over a particular aspect of national policy.

    However, the problem of the administrative state is straightforward. Whether the regulatory agencies are 'executive agencies,' 'executive departments,' 'federal departments,' or 'independent regulatory commissions' is irrelevant. In whatever form they may take, the myriad agencies and departments that make up this administrative state operate as a 'fourth branch' of government that typically combines the powers of the other three and makes policy with little regard for the rights and opinions of citizens. (p. 5)[5]

    		”

    "Part II: The Problem of the Administrative State"

    In the second section of the article, Postell presents his argument that the administrative state is unconstitutional. He identifies four constitutional conflicts to support his position: (1) the consolidation of executive, legislative, and judicial powers within adminsitrative agencies, (2) the delegation of legislative power to administrative agencies through rulemaking, (3) the abandonment of the republican form of government through the violation of the principle of government by consent through direct or indirect elections, and (4) administrative adjudication proceedings that fail to recognize the rule of law:[1]

    “
    Many modern administrative agencies clearly violate the Constitution’s principle of separation of powers by combining legislative, executive, and judicial power in the same hands. James Madison explains in Federalist No. 47 that 'the combination of all powers legislative, executive, and judiciary in the same hands…may justly be pronounced the very definition of tyranny.'



    In Madison’s view, the very act of combining all powers of government in the same hands is tyrannical, regardless of whether the official exercising these powers is benevolent. This is because the temptation to abuse that power will always be too great a temptation for human nature to withstand: 'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.' Men, alas, are not angels. (p. 11)[5]

    		”

    "Part III: The Alternative-Constitutional Government"

    Postell presents what he considers to be a responsible approach to regulation in an effort to reform the administrative state. He advocates a return to the regulatory approach of the Founding Fathers, who supported regulations consistent with natural rights and developed within the constitutional framework. Postell proposes (1) explicitly stating the duties of administrators rather than granting them discretionary authority, (2) adjudicating cases through the judicial system, and (3) decentralizing regulatory authority to the local level as potential reforms:[1]

    “
    Reforming the administrative state would not mean an end to all regulation. The choice is not between the current state of unconstitutional overregulation and a Wild West of laissez-faire. What we need is responsible regulation within the constitutional framework on which this country stands.


    Regulation has been prevalent in American society since the time of the Founding. Regulation has never been understood to be by definition in conflict with the principles upon which America was founded. But the administrative state eliminates the possibility of responsible regulation: both responsible in the sense of accountability and responsible in the sense of justice.

    Whenever the possibility of reforming or eliminating our modern bureaucracy is brought up, the typical response is twofold: We need the expertise of the agencies in our modern, hypercomplex world, and getting rid of bureaucracy would mean a return to the anarchy of laissez-faire economics with child labor, unsafe food, and unregulated markets. At best, these responses are based on ignorance of how regulation has worked traditionally. At worst, they are dishonest and intended to demonize any attempt to challenge the status quo.

    Both of these arguments are disproved by looking at the Founders’ approach to regulation. The Founders responded to an interdependent and complicated economy with regulations that were consistent with natural rights and—just as important—established through a constitutional process rather than an unconstitutional fourth branch of government. (p. 20)[5]

    		”

    "Part IV: What Can Be Done?"

    Postell concludes the report with actionable proposals for reigning in the authority and curbing the growth of the administrative state. He suggests that Congress can take a more active role in administrative oversight by using the power of the purse to institute financial accountability for agencies and by requiring congressional approval of any proposed administrative rules. Postell also suggests limiting agency autonomy by bringing all agencies under the control of the president and strengthening the standards for judicial review of agency actions:[1]

    “
    But serious reform is possible. To the extent that the modern regulatory system has become an administrative state, it must be dismantled. This does not require that we eliminate the entire welfare state, shut down every federal agency, or close down most federal departments. It does require sound, strategic thinking based on an understanding of how constitutional principles should be applied today.


    Each of the three legitimate branches of government has a role to play in restoring constitutional government and reining in the unconstitutional power of the administrative state.

    • Congress can take concrete and attainable steps to restore its constitutional responsibility for making the laws.
    • The President can take measures to attain greater control of the truly executive functions of administrative agencies and federal departments, restoring the chief executive’s constitutional authority to oversee executive branch affairs (and creating incentives for Congress to stop delegating its power).
    • The courts can take more responsibility in reviewing the decisions of administrative agencies and federal bureaucracies, both to prevent the expansion of their powers and to preserve the rule of law and the rights of citizens who are subject to the agencies’ and departments’ control. (p. 25)[5]
    		 ”

    See also

    Full text

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 The Heritage Foundation, "From Administrative State to Constitutional Government," December 14, 2012
    2. ↑ 2.0 2.1 University of Colorado at Colorado Springs, "Joseph Postell, PhD," accessed August 30, 2019
    3. ↑ The Federalist Society, "Joseph Postell," accessed February 8, 2018
    4. ↑ Hillsdale, Joseph Postell, accessed July 5, 2023
    5. ↑ 5.0 5.1 5.2 5.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    v • e
    The Administrative State
    MainThe Administrative State Project Badge.png
    Pillars
    Reporting
    Laws
    Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
    Cases
    Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
    Terms
    Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
    Bibliography
    Agencies
    Retrieved from "https://ballotpedia.org/wiki/index.php?title=%22From_Administrative_State_to_Constitutional_Government%22_by_Joseph_Postell_(2012)&oldid=10301785"