John A. Rohr
Constitutional Legitimacy and the
Administrative State: A Reading
of the Brownlow Commission Report
Men are not corrupted by the exercise of power or debased by the habit of obedience, but by the exercise of power which they believe to be illegitimate, and by obedience to a rule which they consider to be usurped and oppressive.
Alexis de Tocqueville
The administrative state is the political order that came into its own during the New Deal and still dominates our politics. Its hallmark is the expert agency tasked with important governing functions through loosely drawn statutes that empower unelected officials to undertake such important matters as preventing "unfair competition," granting licenses as "the public interest, convenience or necessity" will indicate, and maintaining a "fair and orderly market." The administrative state is not confined to regulating industry. Its writ runs to defense contracting and procurement, military and diplomatic policy, and the institutions of mass justice that manage programs in public assistance, public housing, public education, public health, disability benefits, veterans' benefits, and food stamps. In a word, the administrative state is the welfare/warfare state we know so well. I shall try to offer a "general consideration" of the New Deal legacy by emphasizing the legacy the New Dealers received from their predecessors rather than the legacy they have left for us. Specifically, I shall compare the principles of government the New Dealers relied on in establishing the administrative state with the principles of the founders of the Republic. 1 I shall present the establishment of the administrative state as in some sense a reenactment of the founding of the Republic. I say "in some sense." To draw comparisons between the 1780s and the 1930s, one needs a good deal of imagination and a high tolerance