As the administrative state distorts the United States’ constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch.…
Particularly, it should prevent Congress from delegating to executive agencies the essentially legislative power of formulating “generally applicable rules of private conduct.” Such delegation, Thomas says, erases the distinction between “the making of law, and putting it into effect.” This occurs when Congress — hyperactive, overextended and too busy for specificity — delegates “policy determinations” that “effectively permit the President to define some or all of the content” of a rule of conduct.
This delegation of power to administrative agencies transfers power to unelected officials. The linkage to accountability of the elected executive is much weaker than ever intended in our constitutional order. Experience with and knowledge of the problems emanating from such an approach exists.
This ties in nicely to the problem of soft despotism and more specifically the relevant thoughts of Walter Lippmann as expressed in Soft Despotism, Democracy's Drift by Paul Rahe:
The progressives expressed great admiration for Abraham Lincoln, and they tended to justify their endeavor with an appeal to the American Founding Fathers and to speak of their aim as the achievement of Jeffersonian ends by Hamiltonian means. But the truth is that Herbert Croly, Walter Lippmann ... John Dewey, and their associates aimed at the foundation of a new political regime, distinct from and, in certain critical respects, opposed to the one that had gradually taken shape in the period stretching from 1776 to 1789, which Lincoln later strove so mightily to defend. To this end, they abandoned not only Jefferson but Hamilton and Lincoln as well, dismissing as outdated the concern with individual, natural rights that the three men shared; rejecting as wrongheaded and outmoded Jefferson’s argument for the virtues of political jealousy and his insistence that vigorous local self-government is essential to the maintenance of liberty; and substituting for Hamilton’s notion of statesmanship and for that of Lincoln an account—grounded in Hegel’s confidence in the inevitability of human progress, owing a great deal to his discussion of the civil service as a “universal class” in his Philosophy of Right, and informed by a truncated reading of Rousseau’s Social Contract – which was incompatible with the principle of limited government and closely akin in its practical aspects to the vision of rational administration once projected in France by Anne-Robert-Jacques Turgot any by the Physiocrats. To America from Germany, the progressives brought an especially virulent strain of the French disease. (pp. 245-6)
… “The old ‘rights of personal competency,’” valued by Jefferson, “the right to read, to think, to speak, to choose, and live a mode of life must be respected at all hazards,” but “property rights” would have to give way, for, he (TR) proudly announced, “the day of enlightened administration has come.”
No one saw the consequences as clearly as did Walter Lippmann, for no one was as well-positioned as he. Lippmann had been a leading progressive. At Harvard College, he had dabbled in socialism. Some four years after his graduation, he had joined Herbert Croly and Walter Weyl in founding The New Republic, and in 1914, he had published the influential progressive tract Drift and Mastery: An Attempt to Diagnose the Current Unrest. For a brief time, during the First World War, Lippmann had been an advisor to Woodrow Wilson. After the war, in which he witnessed the effectiveness of propaganda, Lippmann began to harbor doubts about the progressive conviction that popular sovereignty and governance by experts can easily be reconciled. In Public Opinion, published in 1922, he called into question the capacity of ordinary citizens to discern what was going on; and in The Phantom Public, published five years later, he expressed doubts as to whether it made any sense at all to speak of the public interest in the manner in which the progressives did: as something radically distinct from and in tension with individual rights and the diverse private interests of the citizens.
In 1932, thinking that there was no alternative, Lippmann voted for Franklin Delano Roosevelt. But by 1937 he had come to entertain grave misgivings. He had noticed that, while, the partisans who are now fighting for the mastery of the modern world wear shirts of different colors, their weapons are drawn from the same armory, their doctrines are variations of the same theme, and they go forth to battle singing the same tune with slightly different words…
Throughout the world, in the name of progress, men who call themselves communists, socialists, fascists, nationalists, progressives, and even liberals, are unanimous in holding that government with its instruments of coercion must by commanding the people how they shall live, direct the course of civilization and fix the shape of things to come… The premises of authoritarian collectivism have become the working beliefs, the self-evident assumptions, the unquestioned axioms, not only of all the revolutionary regimes, but of nearly every effort which lays claim to being enlightened, humane, and progressive.
So universal is the dominion of this dogma over the minds of contemporary men that no one is taken seriously as a statesman or a theorist who does not come forward with proposals to magnify the power of public officials and to extend and multiply their intervention in human affairs. Unless he is authoritarian and collectivist, he is mossback, a reactionary, at best an amiable eccentric swimming hopelessly against the tide. It is a strong tide. Though despotism is no novelty in human affairs, it is probably true that at no time in twenty-five hundred years has any western government claimed for itself a jurisdiction over men’s lives comparable with that which is officially attempted in totalitarian states…
But it is even more significant that in other lands where men shrink from the ruthless policy of these regimes, it is commonly assumed that the movement of events must be in the direction. Nearly everywhere the mark of a progressive is that he relies at last upon the increased power of officials to improve the condition of men.
What worried Lippmann the most – what had worried Coolidge, and what should worry us still – was the failure of those who considered themselves progressives to “remember how much of what they cherish as progressives has come by emancipation from political dominion, by the limitation of power, by the release of personal energy from authority and collective coercion.” He cited “the whole long struggle to extricate conscience, intellect, labor, and personality from the bondage of prerogative, privilege, monopoly, authority.” It was, he said, “the gigantic heresy of an apostate generation” to suppose that “there has come into the world during this generation some new element which makes it necessary for us to undo the work of emancipation, to retrace the steps men have taken to limit the power of rulers, which compels us to believe that the way of enlightenment in affairs is now to be found by intensifying authority and enlarging its scope.”
Americans were used to managing their own affairs by way of local and state governments; they had forged political parties for this purpose, and they were instinctively reluctant to cede control to a centralized administration dominated by a distant and patronizing intellectual elite.
In fits and starts, however, under the influence of progressive political science, the administrative state began to take shape in the last decades of the nineteenth century and in the first two decades of the twentieth century – at first, locally, and, then, at the national level. (pp. 253-5)
Our new masters have it in their power to deepen the economic crisis and worsen our distress in the manner of Hoover and the younger Roosevelt. By instituting a second New Deal, as they very much like to do – by sharply raising taxes on fossil fuels, dividends, and capital gains; by targeting the earnings of the well-to-do; by pursuing protectionism, expanding the regime of programmatic rights, and forcing workers into labor unions – they can discourage investment, curb entrepreneurship, reduce foreign trade, and decisively slow economic growth, or even bring it to a lasting halt, while offering to those consigned to the dole thereby a dependence upon the generosity of an all—encompassing state. Just how ruthless they will prove to be on this occasion, just how far they intend to hustle us down the path we tread, remains as yet undetermined.
The only thing that is crystal clear is the direction of our drift and the nature of the threat we face. Walter Lippmann’s warning is as apt today as it was in 1937 – for “the premises of authoritarian collectivism” are once again, as they were then, “the working beliefs, the self-evident assumptions, the unquestioned axioms” behind “nearly every effort which lays claim to being enlightened, humane, and progressive,” and hardly anyone today “is taken seriously as a statesman or a theorist who does not come forward with proposals to magnify the power of public officials and to extend and multiply their intervention in human affairs.” Like the younger Roosevelt, our new leader poses as a secular Messiah; his minions believe, as did the progressives of an earlier time, that there has recently come into the world “some new element which makes it necessary for us to undo the work of emancipation” achieved by our forebears and “to retrace the steps men have taken to limit the power of rulers”; and in the ranks of our compatriots they will find many prepared to sacrifice self-reliance and personal independence for a promise of security no government can keep. The hour is, indeed, late.
To those caught up in the maelstrom, recent developments may well seem dramatic, but, in truth, they serve merely to highlight the plight that we have been in for more than three quarters of a century. (pp. 269-270)