What the term covers
On The Bob Zadek Show the phrase “administrative state” is used for the government agencies that carry out government programs, and the show treats it as distinct from government administration in general. Bob Zadek framed the distinction for his audience by noting that the Constitution provides for a Postmaster General and a post office, and that no one expects the Postmaster General to deliver the mail personally, so the Constitution anticipates government workers; the “administrative state,” he said, is the “somewhat sinister-sounding” thing beyond that The Dubious Morality of the Modern Administrative State (2020). He described it as not provided for anywhere in the Constitution, which sets up three co-equal branches, and as a somewhat recent invention not controlled by small-d democracy.
Terry Moe gave the opposite framing, treating the term as unremarkable: all modern governments have administrative states, which he defined as nothing more than all the government agencies that carry out the programs of government. Governments have programs, he said, because as democracies they are filled with people who experience socio-economically caused problems that government is expected to solve, from antitrust to poverty programs to environmental programs to agricultural programs. The only way to have no administrative state, on his account, would be to return to a primitive government in a primitive society Populism After Trump (2021).
Philip Hamburger, introduced by Bob as a Columbia Law School professor who has written on the administrative state, called it the fourth branch of government and described administrative power as the greatest threat to civil liberties in our era The New Civil Liberties Movement (2021). Bob used the same phrase, the unelected fourth branch of government, when putting the critics’ case to Timothy Sandefur Timothy Sandefur on The Libertarian Constitution (2021).
The constitutional objection
Bob Zadek’s opening framing in the Epstein episode was that the administrative state is not provided for in the Constitution and is not controlled by small-d democracy. Richard Epstein, introduced as the Peter and Kirsten Bedford Senior Fellow at Hoover, the Laurence A. Tisch Professor of Law at NYU Law School, and a senior lecturer at the University of Chicago, was on the show to discuss his book on the dubious morality of the modern administrative state The Dubious Morality of the Modern Administrative State (2020).
Hamburger’s account of how the courts relate to administrative power is that through intimidation the court has legitimized administrative power, taking away most procedural rights such as juries and the right to govern ourselves through Congress. He contrasted progressives, who sought the administrative state and now want still more power on the Supreme Court, with conservatives, who he said are not seeking a reconfiguration of the judiciary to get their way but arguing through logic for defense of rights Philip Hamburger on Court Packing (2021).
Sandefur, discussing a libertarian constitution drafted by a team, said the complaint that the Supreme Court behaves as a super-legislature tends to be exaggerated, and that the problems they ran into are often because courts fail to enforce the Constitution rather than because they go beyond their authority. Given a choice between a court that strikes down too many laws and one that strikes down too few, he said, they would much prefer the former to a court that turns its back and allows Congress and the president to ride roughshod over liberty Timothy Sandefur on The Libertarian Constitution (2021).
On the administrative state specifically, Sandefur said it troubles them that agencies write rules and put them into effect without real congressional or presidential oversight, so that the laws people live under are written by hirelings instead of by the people’s elected representatives. But he also said agencies are basically an inevitable part of government and cannot really be done away with, so their view was that as long as constitutional protections for individual rights are faithfully followed, they could live with the existence of administrative agencies. He described the biggest problem today as constitutional promises not being followed, because people either do not understand them or elect officials who do not care about them.
Litigation against agencies
Hamburger founded the New Civil Liberties Alliance about four years before his 2021 appearance, describing it as somewhat like the ACLU except that it actually tries to defend civil liberties, with about 20 people in Washington, D.C. He said the organization’s founding theory is that administrative power is the greatest threat to civil liberties in our era. He described the Securities and Exchange Commission going after insider trading not by an act of Congress but with its own invented rules, prosecuting people in its own non-courts run by so-called administrative law judges who are not really judges, do not give a jury, do not give due process of law, and are quite biased The New Civil Liberties Movement (2021).
Hamburger said the NCLA’s litigation had done well enough that the SEC had largely given up bringing cases before administrative law judges and was being forced into district court. He then described Spartan Securities v. SEC, in which the judge instructed the jury that guidance is not binding as law and the jury acquitted the client on 13 out of 14 charges, the 14th being small potatoes. He said this chased the SEC out of what he called unconstitutional little administrative tribunals into district court, where he said the SEC cannot win.
In the earlier court-packing episode, Hamburger described the New Civil Liberties Alliance as founded about three or four years earlier as an alternative to the ACLU, defending procedural rights such as jury rights and due process, speech rights, and the right to govern ourselves through legislation rather than through administrative rules. He said the organization had about 20 people in Washington, D.C., and had gotten the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines in which the courts defer to administrative agencies, and that he hoped soon to take big chunks out of the administrative state and its unlawful power Philip Hamburger on Court Packing (2021).
Bob’s own characterization of the NCLA’s work in that episode was that Hamburger is director of the Columbia Law School Center for Law and Liberty and president and founder of the New Civil Liberties Alliance.
Defending the administrative state
Terry Moe’s defense in the populism episode was that the administrative state is the organizational means by which government programs are carried out, and that the people who staff it are not unaccountable: they are held accountable by the representatives elected at the top of the government, which he said is how government works in the United States and in all modern democracies. He said that if you say the problems government addresses do not need to be addressed, there are 300 million people in this country who think otherwise Populism After Trump (2021).
Moe described Trump as having sought to hollow out the administrative state by undermining professionalism and expertise and science and the capacity of government to solve societal problems effectively, which Moe said only undermines the government’s capacity to do what citizens want done. He said a big part of the reason populists can take on the administrative state is that they have no constructive agenda and are in the business of attacking the system, being anti-expert, anti-science and anti-professional. He cited Trump tearing away at agencies such as the State Department, causing hundreds of top-level foreign service officers to depart and crippling it, without replacing it with anything.
William Howell added that a principled effort to limit the reach of government is a different project from what the populist does: the populist lays waste to the vast apparatus but not in a principled effort to say government should not be in a given business. He said this is not an argument for limited government or conservatism, that there was no reduction in the size of government under Trump, and that what resulted was a much less effective, hollowed-out administrative state. In that sense, he said, the populist and the libertarian part company early on when given power.
Across episodes: the same question, two answers
The excerpts show the same question argued across episodes without either side modifying its position. Epstein and Hamburger treat the administrative state as a constitutional and moral problem to be litigated and rolled back, with Hamburger reporting concrete litigation gains against the SEC and before the Supreme Court. Moe and Howell, in a single episode, treat the same institution as the ordinary machinery of modern democracy and treat attacks on it as attacks on expertise and on what citizens want. Sandefur occupies a third position, accepting agencies as inevitable and resting the case on enforcing individual rights. The excerpts show no development between the earlier and later treatments; the disagreement is stated, not resolved.
What the sources do not cover
The excerpts do not state the outcome of the non-delegation or deference cases Hamburger refers to, beyond his saying the Supreme Court was moved to reconsider them. They do not give the text or holding of any statute or decision other than the jury instruction and acquittal in Spartan Securities v. SEC. Epstein’s own argument in his book is not set out in the excerpt, which ends during Bob’s opening question to him. The excerpts also do not say what became of the New Civil Liberties Alliance’s litigation after 2021.