A non political professional administrative state was the most lasting legacy of the progressives in the first progressive era, but it was based on two assumptions that proved false and one constitutional issue that the courts are adjusting to.

The first assumption was that there is a general will as opposed to political interests, and that the administration of government was beyond debate and this could be handled by professional NON Partisan administrators. The second assumption was that the administrators would be competent enough to design and overrule market systems and mechanisms.  The administrative state has clearly become politicized especially with the allowance of public sector unions under Kennedy.

The knowledge deficit has become worse.  Economics and sociology has studied the inability of any select group to possibly understand the decision matrices of a modern market.  Experts can know more than any of us, but not more than all of us.  Decision biases affect the brightest around us.  The Best and the Brightest by David Halberstam was the story of the disasters visited on us by some of our most credentialed leaders and advisors.

“The curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. Friedrich August von Hayek

The constitutional question is the more serious one. The Founders were conservative in the sense that they took man as he was with all of his virtues and weaknesses and understood the seduction of power.  This is why they divided power and why Madison observed that the epitome of tyranny is the combination of the executive, legislative and judicial functions in a single branch.  That is essentially the state of our current administrative state and explains how my experience with the EPA became possible.  Challenges to the legislative acts of the administrative state will be the most serious challenge to be handled  by SCOTUS.  It is coming.

The other danger of delegating the details of legislation it that it removes Congress from accountability and makes for sloppy legislation.  Legislators are allowed to govern by theory, proposing an idea and then delegating the details to an agency charged to “make” it work.  Similarly they have made SCOTUS political depending on an activist court to press their legislative agenda, forgetting that it was an activist court that delivered the Dred Scott decision.  How comfortable will we be with an activist court loaded with Trump nominees?

This leads to a rethinking of the Administrative State in line with lessons learned and new thinking on how such organizations function.  Regulators are OK for executing clear laws, but terrible at designing systems and regulations  to advance unproven political theories.