Purchasing shotguns and kicking down doors-the Department of Education's recent actions teach us about the frightening ascendancy of the "administrative state." I recently had a chance to discuss this with Dr. Joseph Postell, who is working on a book on the administrative state. Postell, formerly with the Heritage Foundation, now teaches political science at the University of Colorado at Colorado Springs. His first book, Rediscovering Political Economy, co-edited with Bradley C.S. Watson, is due out in August.
WISHING: You're doing research on the "administrative state." Please tell us what that means.
POSTELL: The administrative state is the new form of government we have created in America. It happens when power shifts from the representative, constitutional institutions in American politics-Congress, the president and Cabinet, and the Supreme Court and other federal courts-to administrative agencies like the Department of Education. These agencies are in reality a fourth branch of government. They make law, execute law, and apply law, so all three powers are combined, and they are not directly accountable to any of the three branches of government.
WISHING: You're aware of the recent Department of Education story in which police officers on the behalf of the DOE kicked in a door and raided the Stockton, Calif., home of Kenneth Wright. Wright said he was handcuffed and he and his three children were held in a police car for hours as authorities sought action against his estranged wife. And then another story surfaced about the DOE purchasing shotguns. This is stunning stuff-I would have never thought the Education Department would be buying guns and knocking down doors. How is this possible?
POSTELL: One of the assumptions of the administrative state is that those who possess political power-who work for the governed-are experts who help ensure order in a world that would be chaotic if people were left to their own devices. During the Founding, there were executive agencies but the assumption was that these officials were servants of the public, and that they should always be accountable to the people they were serving.
The Founders were very concerned about the possibility of a government where officials would use political power for their own purposes rather than pursuing the public good. The two problems that preoccupied them were the tyranny of the majority and the tyranny of rulers. The Founders may not have been specifically concerned about the rise of an administrative state, but they knew the problems that would arise when too much power and discretion are given to political officials, who are men-not angels-and who would be tempted to abuse that power.
By contrast, today's administrators are told that they are the experts, that they are not reliant on the people for their authority, and that the people must be made to serve them. This yields the kind of haughty contempt that bureaucrats often have for citizens, and it is one of the main reasons that we hear about bureaucratic overreach so frequently.
WISHING: Why is the administrative state something that Americans should be concerned about?
POSTELL: The administrative does damage to important constitutional principles. These principles are safeguards of individual liberty and place government under our control, rather than vice versa. The two main constitutional principles that are harmed by the administrative state are the separation of powers and republicanism-which rests on the principle of electoral representation. Separation of powers states that the same person should not have the whole power of legislating and executing the law, because that person would be tempted to make law and apply it in a biased manner. Today's agencies are responsible for enforcing the laws that they create, violating this principle.
Furthermore, most agency officials are not elected or directly appointed by the president, which means that republicanism is violated. Most of the laws in our country today are made by these agencies, yet we've been deprived of our primary controls over them.