Dictatorship by the Administrative State

In an earlier post, I wrote the following:

Bureaucracy encourages a legalistic, rule-bound mentality. It says, in effect, you can only do what has been codified. This leads to the generation of hundreds of thousands of rules and laws to control behavior, coupled with the impossible-to-follow proviso that ignorance of the law is no defense. This is why the bureaucratic state has become the modern form of dictatorship, a system of excessive law (Applying Principles, p. 328; see also, pp. 117-21).

Bureaucracy and administrative state are essentially the same thing. Bureaucrats are unelected administrators and policy makers who run the various governmental bureaus—about 432 in the United States to be exact. (Another, more recent term to disparagingly describe these bureaus is “deep state,” though it is broader including think tanks, military leaders, and the national media.)*
 
In contrast to the administrative state, as I continue in the above earlier post:

A truly free society . . . says you can do whatever has not been codified, i.e., you can do whatever you choose provided you do not violate the rights of others. Rules and laws are few and they are abstract principles. Communication, persuasion, and appeals to inner values become the primary means of relating to others.

And according to defense attorney Alan Dershowitz, criminal law during the early days of this country was simple enough to be read and understood while running!
 
What we have discovered in recent years, however, is that excessive law, vague and overly broad law, and complicated law that cannot be “read and understood while running” are not the only obstacles to a truly free society.
 
Many top bureaucrats in the administrative state are highly partisan, and in some cases, power-mongers who have little respect for their duties as administrators and policy makers, often following the progressive mantra of  “logic, consistency, and truth be damned.”
 
In our American bureaucracy, to administrate means to execute or implement the policies of the sitting president. As policy makers, the obligations of the various bureaus are to make recommendations to the current administration. Nothing in the job description says that bureaucrats may refuse to comply with the Executive’s orders.
 
“Refusal,” however, is the least of what occurred in our previous presidential administration.
 
James Sherk, domestic policy advisor to the President Trump, states that there are about 4000 “at will” political appointees in the bureaucracy, but a total of 2.2 million—essentially tenured—bureaucrats, because it is nearly impossible to fire them. The “at will” appointees, in contrast, can be fired by the Executive. Delegation of work to be done is usually handed down to those senior, unfireable bureaucrats.**
 
It is the higher echelons of this semi-permanent deep state that are the ones who can cause problems for a sitting president. For example, Sherk summarizes what such career bureaucrats have often been guilty of:

• Withholding information;
 
• Refusing to implement policies;
 
• Intentionally delaying or slow-walking priorities;
 
• Deliberately underperforming;
 
• Leaking to Congress and the media; and
 
• Outright insubordination.

Among the worst of bureaucratic subterfuge and insubordination were the self-appointed dictators of public health who led the charge to establish, and continue to rule over, the past two years of covid totalitarianism. Refusal to listen to, implement policies for, or cooperate with the sitting president was worse than palpable. Deception, manipulation, and glaring incompetence due to lack of medical qualification are now being bragged about in post-covid books (see analytical reviews by Lerman and Tucker).
 
Not reading the science or respecting the judgments of such people as Dr. Scott Atlas was typical. Atlas, for example, would walk into meetings of the coronavirus task force with arms full of recently read and analyzed scientific studies—only to be greeted with blank stares and sometimes explicit statements that said, “We don’t care about that.”
 
And Dr. Paul Alexander reports that the bureaucrats he dealt with told him that neither he nor the President had any power, which meant he should toe the line of the deep state or resign. When he was threatened to have his career destroyed—initially, the bureaucrats at Health and Human Services, who hired him, refused to pay him—he resigned.
 
To counter the disingenuousness of these career bureaucrats, Sherk spearheaded the development of executive order Schedule F, signed into law a couple of weeks before the 2020 election, but rescinded almost immediately by the incoming administration. The order focused on making it easier to remove ill performing or insubordinate career bureaucrats. Sherk comments: when the deep state caught wind of the order, “it lit their hair on fire.” Hence, the immediate cancellation.
 
The source of the growing bureaucracy began with the Pendleton Act of 1883 that eliminated the “spoils” (crony) system, though the difficulty of firing bureaucrats did not begin in earnest until the 1940s.
 
The solution to getting rid of this approach to dictatorship is to start closing down government agencies. As columnist Jeffrey Tucker said, talking about the US Department of Education:

Pull the plug on the whole thing and sell the real estate. . . . New CEOs do it all the time. They shut down whole divisions, let go thousands of employees, end relationships with suppliers, sell off properties, and do anything possible to save the company. They do it in order to survive. The company in this case is the United States and it too needs saving.

Send the bureaucrats packing to find honest jobs in the marketplace where their primary task is to satisfy paying customers. Most have likely never held such a job. They have no clue what working in business is really like.
 
Once accomplished, the government may then get back to its constitutional function of protecting individual rights—rather than violating them.
 
 
* Regulatory agencies in particular are unconstitutional because they combine the executive, legislative, and judicial into one governmental organization, violating the separation of powers. The progressive supreme court of the 1920s and ‘30s disagreed, allowing the alphabet soup of agencies to grow seemingly exponentially (see Philip Hamburger, The Administrative Threat; also Applying Principles, pp. 81-83; and here).
 
** The bureaucratic process of trying to fire someone allows for a variety of appeals, requests for reconsideration, and, ultimately, arbitration, which after several months or years often ends in declaring it unjust to fire the employee. Not unlike the academic world.

How to Eliminate Deep State Dictatorship

Why “deep state dictatorship”?

Let me start with the notion that most people would call the middle point between capitalism and socialism a “mixed economy,” which they also continue to say is a “mixture of freedom and controls.”

I’ll grant the “mixed economy” part but add also that the middle point is a “mixed society”—of freedom and dictatorship. When initiated coercion is used against citizens, it is a tactic of the dictator to control not just the economy but every citizen’s behavior. The mixed economy is a mixture of freedom and dictatorship.

The more initiated coercion is instituted by a government, the more that country will move toward a totalitarian society.

Capitalism is a social system in which the government remains completely out of our personal and business lives. It requires a complete separation of church and state, and complete separation of business and state. Individual rights, especially property rights, are its supreme values and are inviolate. The only function of government is to protect those rights and the only justified use of force is self-defensive to retaliate against those who have initiated coercion. This means all businesses, including schools and highways, are privately owned and operated.*

The “deep state” is a relatively new term coming to us apparently from Turkey where it means a secretive, extralegal collection of military, bureaucrats, and politicians who seek to undermine and, in some cases, overthrow a government (1, 2). In the United States, the term refers primarily to the unelected federal bureaucracy, currently estimated to be about three million,** and occasionally to collaborators, such as lobbyists at the federal level (about 12,000), assorted think tanks, military leaders, and corrupt politicians, some (many?) of whom would gladly sell their souls to undermine an administration and, perhaps, overthrow it. The national media, who repeatedly print and broadcast leaked classified information and seem unable to use objective methods of reporting facts and truth, must be added as the deep state’s courtiers.

But what is the origin of the bureaucracy and how necessary is it? In the Roman Empire, there was a large bureaucracy built on patronage, appointed by the emperor in power. The form and purpose of our present system, however, stems from the Han Dynasty in China (206 BC – AD 220)—the “Mandarin system”—and came to us by way of Prussia in the late eighteenth and early nineteenth centuries and then, finally, by the 1883 Pendleton Civil Service act in the United States (1, p. 157; 2; 3).

The significance of the Han system is that it established testing to determine who was “qualified” to serve in the government; it is actually a pretense at objectivity and is the system we have today. (See Megan McArdle on “America’s New Mandarins.”) The aim of the Pendleton Act was to eliminate the (unqualified) bureaucrats of the spoils system and give us supposedly highly qualified government workers. The difference between the two systems is that the spoils workers (a very small number in the US) were usually gone when the next president was elected. In modern systems, bureaucrats, which in numbers multiply like rabbits, may and often do spend their entire careers in the nation’s capital, outlasting many presidents.

This is our inheritance from the Progressives of the late nineteenth century (Applying Principles, pp. 110-13), the Progressives who were trained in Germany by their democratic socialist professors. The deep state, encroaching more and more on the private sector and our rights, is rapidly moving us toward the giant post office that Lenin envisioned as the socialist state.

The deep state is dictatorial because nearly all of its rules, regulations, and laws are initiated coercion. The message to citizens is always some variation of “you must do this” or “you cannot do that.” These are not rules, regulations, and laws to protect individual rights against initiated coercion. They are themselves the initiation and are therefore dictatorial.***

How do we eliminate the deep state dictatorship? Going back to the spoils system would be a good start. Managing the police, military, or legal system, which is what bureaucratic management properly is (Applying Principles, pp. 31-33), does not require an Ivy League education. Reducing the bureaucracy’s size to a tiny percentage of what it is today and selling all business-like governmental assets, such as the post office and all of the federally owned land (28% of the total acreage in the US) would go a long way toward reducing the national debt.

Drastically reducing the unelected bureaucracy would quickly reduce or eliminate the need for lobbyists and think tanks and might even send away those courtiers in the national media to look for honest jobs where they must actually report news based on facts and truth.

For about 130 years, the Progressives—in the name of  “democracy,” “helping the poor,” and “protecting competition”—have been marching us closer and closer to that “heaven” on earth they call socialism. Their recent behavior indicates either that they are desperate and on the precipice of failure (one can only hope!) or that they see an opportunity to steamroll their ideas on the rest of the country.

Deep state dictatorship must be defeated and removed.


* And are profit-making. I take laissez-faire capitalism to mean that there would also be no nonprofit organizations, as they are creatures of the state, the tax laws in particular. (All nonprofits today, to remain viable, must show an excess of donations over expenditures. Some are highly “profitable.”)

** Add about 16 million state and local employees, including public school teachers.

*** How many rules, regulations, and laws? Estimates, of course, vary, but I would put the minimum around 200,000. (In 2016, there were 3853 regulatory rules and 214 Congressional bills added to the Federal Register.) See my post on the “administrative state” (Applying Principles, pp. 81-83), as Philip Hamburger calls the deep state.