The Dubious Morality of the Modern Administrative State



Progressives argue that modern problems demand a modern approach to governance – one which is incompatible with the Founders’ view of limited, separated powers. The Constitution, it is held, must accommodate a wider role for administrative agencies to interpret laws and craft rules for unexpected situations that arise due to new technologies and threats to public safety. Since the New Deal era, these progressives have largely succeeded in bringing about their vision of a more expansive “administrative state.”

I’ve done countless shows on the abuses of this fourth branch of government – including its “midnight regulations,” and stealthy rule-changes that turn law-abiding property owners into environmental criminals overnight. But perhaps I’ve been unfair to the proponents of the administrative state. After all, we can’t expect Congress to foresee every contingency when they write laws, and some sort of administrative apparatus is necessary to maintain tax rolls, administer patents and so on.

Professor Richard A. Epstein (aka “the Libertarian”) has kindly agreed to help me distinguish between these vital functions of the administrative state – which co-existed harmoniously with constitutional principles until the 20th century – from the illegitimate lawmaking that characterizes much of the modern administrative state.

Professor Epstein’s new book The Dubious Morality of Modern Administrative Law (published by the Manhattan Institute) is a 200-page tour de force and a must-read for any student of modern American government. After providing context for the history of the administrative state pre-New Deal, Epstein shows how case after case has set dangerous precedents requiring courts to defer to agency actions when the law in question is ambiguous.

We also discuss the changes brought by the Trump administration regarding the controversial “guidances” issued by administrative agencies – statements that function like final law without granting affected parties the right of de novo review – including the status of the Title IX “Dear Colleague” letters that led to so much confusion around the transgender bathroom issue.

The Dubious Morality of Modern Administrative Law
The Dubious Morality of Modern Administrative Law By Richard Epstein, Laurence A. Tisch Professor of Law, New York University