Epstein: Limited Government and the Administrative State Are Incompatible
Over the weekend, I participated in the 31st Annual Student Symposium of the Federalist Society held at the Stanford Law School. The title of the symposium was “Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?”
The “co-exist” gives away the game. Historically, the term entered the political lexicon with Nikita Khrushchev’s famous 1956 speech to the 20th Congress of the Communist Party of the Soviet Union to signal his break with Stalin’s murderous policies that sought constant confrontation with the West. Coexistence meant the West could go its way so long as the Soviet bloc could go its own way too—a live-and-let-live relationship where occasional interactions would iron out any difficulties that arose. Nine months later, he announced to the West, “We will bury you.” Less than five years after that, the United States and the Soviets came to the brink during the Cuban Missile Crisis, where the Soviets sought to alter the global balance of power by using Fidel Castro’s Cuba as a base for its operations.
Peaceful coexistence, therefore, does not offer an ideal paradigm of how the rule of law does, or should, interact with the modern administrative state. To see why the two are ultimately incompatible, we must consider the nature of both the “rule of law” and the “administrative state,” about which I have written more extensively in my recent book Design for Liberty.