Constitutional expert: ...we should “reject all administrative power” and “consider it the civil liberties issue of our time."

Peter Berkowitz is the Tad and Dianne Taube senior fellow at the Hoover Institution

The rise of progressivism and the growth of the administrative state go hand in hand. Administrative power is an anti-democratic and illiberal means by which intellectual elites and political professionals have transferred legislative and judicial power to bureaucrats insulated from democratic accountability.

From the conservative point of view, the Fourth Circuit’s blocking of Trump’s executive order illustrates the typical progressive attitude that formalities of law and constitutional government must yield to policies that advance progressive ends. The relentless growth of the regulatory and welfare state, according to the conservative critique, stems from progressives’ putting their partisan preferences ahead of the Constitution’s clear and explicit commands.

Legal scholar Philip Hamburger believes the conservative critique is nearer to the mark, even as it underestimates the invidious legal mechanisms by which the federal government regulates Americans’ lives and redistributes their wealth. In “The Administrative Threat,” a brisk pamphlet published by Encounter Books, he distills the central argument of his daunting 2014 scholarly work, “Is Administrative Law Unlawful?” His chief contention is that “administrative power evades governance through law and thereby circumvents constitutional process and procedural rights.” A professor at Columbia University Law School and perhaps the nation’s premier historian of the American constitutional tradition, Hamburger comes to the drastic conclusion that we should “reject all administrative power” and “consider it the civil liberties issue of our time.”

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