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Resisting ‘The Administrative Threat’

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Resisting ‘The Administrative Threat’

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November 2017

The greatest threat not just to American business, but to American governance itself, comes from “administrative power,” according to Philip Hamburger, a professor of constitutional law at Columbia Law School.

The growth of administrative power is, in fact, the most important civil liberties issue of our time, he argues in The Administrative Threat. We readily recognize that administrative power “is inefficient, dangerously centralized, burdensome on business, destructive of jobs, and stifling for innovation and growth.” But we have yet to figure out how to resist and roll back this power, though Hamburger offers new suggestions for curtailing it.

Define administrative power

We usually call it “administrative law,” though I don’t like that term because in my judgment it is not “law” because it is unconstitutional. But what it means is the exercise of power through regulatory agencies and commissions such as the Department of Health and Human Services (HHS) or the Securities and Exchange Commission, and through Institutional Review Boards. Congress can pass laws that state some broad objectives and then these unelected agencies actually figure out what the law means — and then have the power to enforce that law, through a variety of mechanisms — through fines or licensing, for example.

Don’t we pretty much take this for granted now?

Unfortunately, we do. It’s been “normalized,” and we rarely question it. Companies sometimes fight against specific decisions or rulings or actions, but there’s not been a serious, systematic push back in an effective way. But the need to do so is mounting.

What’s the urgency?

I’ll offer only one example. A huge area where we can see the effect is in medicine and medical research. HHS and the Food and Drug Administration have become concerned that not even one person can be hurt in the course of medical research and have taken this concern to a perversely extreme degree. Today, to do research, even at the most responsible academic institution, you have to obtain prior permission. We are so far behind in medical research by this time that I think we won’t wake up to the reality until the next epidemic when people ask, “Where was the drug to deal with this?”

Can you offer an example?

Sure. In one case, HHS shut down research into the use of catheters near the heart despite admitting that the research actually saved the lives of 10,000 Americans per year. It’s impossible to quantify the chilling effect of administrative power on research because you can’t measure the result of research that has never been conducted. But a few years ago, when I last checked, of the 10 major pharmaceutical companies, only four were working on new antibiotics.

To Hamburger, administrative power is the key civil liberties issue of our era.

This power has been building for years, right?

Yes, and that’s an interesting story. The two major developments in our governance, going back to World War I, are the expansion of the right to vote and the growth of administrative power. Woodrow Wilson was quite explicit about the connection between these two developments. Wilson said that while more and more people — and he explicitly mentioned not just women and African-Americans but also Germans and Irish — could vote, they would not exercise the franchise wisely.

There was no conspiracy here, was there?

No, and that is an important point to make. My critique isn’t about “the Deep State.” This isn’t a cabal of Washington insiders making decisions in secret. It’s actually accepted fact, out in the open. It’s complicated, to be sure, so it doesn’t make for lively debate on Fox or MSNBC, but in many ways it is far more troubling than the stuff they argue about on those shows. Even so, there is a connection.

What is the connection?

There’s widespread and understandable concern these days about the level of anger in the electorate. People on both sides seem to feel that despite the fact that they can vote and express their opinions, they really have no say in what the government does. They can vote for congressional candidates whose views they support, but Congress isn’t making so many of these decisions that in one way or another touch them in their daily lives. There’s a good reason they feel they have no say in their government. One proper response to that, I believe, is to roll back administrative power.

How can you do that?

It’s possible, but it must be done with a good deal of sophistication. It is hard to fight the Environmental Protection Agency, for example, if your company is already in its cross-hairs. Arguing that a specific decision hurts your company is not a persuasive argument to make before administrative law judges for at least one very specific reason, which goes back to the Chevron case ruling of 1984. That’s a huge case because the ruling was that whenever the law is ambiguous, administrative law judges are required to follow a federal agency’s own interpretation of the law in question. What that means is that they are required to be biased in favor of the agency that is a party to the case. And that is clearly a violation of their duty to be independent.

Any other suggestions for resisting the administrative threat?

Definitely. A company cannot do it alone. It has to be a group effort, with other companies or associations. That’s why I formed the New Civil Liberties Alliance, a public-interest law that engages in litigation to challenge administrative power. As I say, you can’t fight this battle alone. It won’t work. You have to work through third parties.

Reach Hamburger at 212.854.6001 or [email protected].


Additional Resources

Video Files: Trends in Government Relations

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