Academic journal article Northwestern University Law Review

Optimal Abuse of Power *

Academic journal article Northwestern University Law Review

Optimal Abuse of Power *

Article excerpt

ABSTRACT-I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall.

There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about "private" misrule-misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing power under the rules of the 18th-century common law of property, tort, and contract. The administrative state thus trades off governmental and "private" misrule. Second, the rate of change in the policy environment, especially in the economy, is much greater than in the late 18th century-so much greater that the administrative state has been forced, willy-nilly, to speed up the rate of policy adjustment. The main speeding-up mechanism has been ever-greater delegation to the executive branch, accepting the resulting risks of error and abuse. Third, the costs of enforcing legal rules against executive officials are necessarily positive and plausibly large, in part because any institutional monitors created to detect and punish abuses must themselves be monitored for abuse.

The architects of the administrative state believed that a government that always forms undistorted judgments, and that never abuses its power, will do too little, do it too amateurishly, and do it too slowly. In that sense, the administrative state constantly gropes towards an institutional package solution that embodies an optimal level of abuse of power.

"[I]n every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused."

-James Madison*

"[L]iberty may be endangered by the abuses of liberty as well as by the abuses of power."

-James Madison[dagger]

"That power might be abused, was to persons of this opinion, a conclusive argument against its being bestowed; and they seemed firmly persuaded that the cradle of the constitution would be the grave of republican liberty."

-John Marshall [double dagger]


I hope to restate, from a somewhat different angle, my objections to a particular way of looking at constitutional and institutional design.1 On this view, which I call precautionary constitutionalism,2 the master aim of constitutional design is to prevent the abuse of power. Precautionary constitutional theory is haunted by the prospect that some official somewhere might commit abuses. Different strands of precautionary constitutionalism define "abuse" differently. Abuse may be defined in legal terms as action that flagrantly transgresses the bounds of constitutional or statutory authorization, or in welfare-economic terms as action that produces welfare losses-either because officials have ill-formed beliefs3 or because they act with self-interested motivations. My objections apply equally to all these versions, so I need not specify any one of them in particular.

In the modern administrative state, there are three major problems that undermine the precautionary view. The first and most obvious problem is that it is excessively costly to strictly minimize the abuse of power by government officials. Strict minimization is excessively costly both because it is expensive to set up the enforcement machinery to prevent abuse, such as inspectors general or criminal sanctions, and because the enforcement machinery will itself be staffed by officials who may abuse their power in turn. Given these costs, the optimal level of abuse of power will be greater than zero.

The second problem is that the goal of preventing official abuse trades off against the goal of producing the myriad of welfare goods that the administrative state supplies, such as poverty relief, health, safety, environmentalism, and consumer protection. …

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