July 30, 2021


Can we have a government that is constitutional and also effective? For more than 100 years, we have operated under the profoundly mistaken belief that the answer to this fundamental question is no, we cannot have a government that is both constitutional and effective. We must choose one or the other.

If we want a constitutional government structured to protect our liberty, we must resign ourselves to the fact that its limited powers and separate branches prevent it from functioning effectively to provide the beneficial public policies we need and want as a society. On the other hand, if we want a government that can function effectively to provide the kind of beneficial public policies that we need and want, we must lay aside the constitutional government bequeathed to us by the Founders and forego the structural protection it provides for our liberty.

This belief that we must choose between constitutional government and effective government is profoundly mistaken. It represents a false dichotomy, one that has misdirected and restricted our thinking about constitutional government for decades.

We wrongly came to believe that we must choose between constitutional government and effective government, and we fatefully chose to embrace the unconstitutional administrative state for its supposed effectiveness, because we first accepted the fallacious proposition that launched the progressive enterprise at the turn of the 20th century.

From the beginning, progressives have asserted that the Founders’ constitutional government, with its clearly limited powers and separate branches, cannot possibly respond effectively to the many public policy challenges that confront a modern nation. They have rationalized the administrative state and its consolidation of sweeping powers by claiming that ordinary Americans, acting through their elected representatives, are simply not capable of directing the government in modern times. The issues to be dealt with are simply too complicated.

According to progressives, credentialed subject matter experts are needed to manage the demanding complexities of modern society; agency experts who can plan for us, direct us, care for us, and protect us.  Such experts, to fulfill their critically important responsibilities, must be free to apply their professional judgments without interference from unschooled politicians and ordinary citizens. We must defer to the experts. Our elected representatives must accept and rely upon their judgements and directions. As the now familiar saying goes, we must follow the science and not be led astray by politics.

This progressive approach to policy making is fundamentally flawed. Scientists and technical specialists should never dictate public policy. Their perspectives are necessarily limited by specialization. Their information is inevitably incomplete. Their directives often lack the moderation that is fostered by accountability. Their personal interests may conflict with the best interests of society as a whole. As the pandemic made clear, overly deferential reliance on unaccountable experts can lead to disastrous public policy.

The role of scientists and technical specialists in the policy making process should be limited to one that informs and advises politically accountable policy makers, those elected officials who are responsible under the Constitution for weighing all the relevant considerations before deciding on a course of action. But is it possible, in fact, to limit the experts to a constitutionally appropriate supporting role in the policy making process?

Progressives are certainly correct that Congress does not, itself, have the expertise to perform the kind of scientific and technical analysis that the various subject area specialists in the executive branch regulatory agencies perform on a regular basis. But it does not follow from this observation that constitutional government cannot provide the regulations and other public policies needed to respond effectively to the many challenges that confront a modern society. That far-reaching proposition put forward by progressives to justify the administrative state has misdirected public debate about the administrative state for decades.

By focusing on the limitations of the Congress, we have long overlooked the significant opportunities we have to restructure the administrative state in fundamental ways that reshape the regulatory system to the requirements of constitutional government.

We should no longer focus our attention on the Congress and its inability to do the technical work performed by the specialists in executive branch regulatory agencies. Instead, we should in the future focus our attention and creative abilities on efforts to identify and implement the reforms needed to ensure that executive branch experts—the scientists and technical specialists—provide their input to our public policy debates through a process that genuinely respects the separation of powers and effectively supports the efforts of our elected representatives to fulfill their constitutional responsibilities.

We should no longer focus our attention on what the Congress cannot do. In the future, we should focus our attention on what the experts must do and do differently. With this modified focus and a lot of hard work, we can revitalize the first branch of government. We can have a government that is constitutional and effective.


Administrative Law and Regulation Practice Group


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