Third, the administrative state is now so big that it slows down the Presidents in law enforcement and takes away powers from the States. The administrative agencies are often time dictating policies to the States in a way that upset the federal nature of our Constitution.
We could witness an originalist shift in the federal judiciary over the last term. What does this shift mean for the administrative state as well for the distortion of the government structure?
Our Supreme Court issued a few decisions in the last term that pushed back against agencies and told the agencies that courts should give much less deference and much less leeway to the agencies when they suddenly assert new, unprecedented and broad powers under old statutes. But it was not a great surprise, it was rather a culmination of a few things. In general, the federal judiciary has become more skeptical of agencies suddenly claiming new powers under old statues. The courts also worry about Congress delegating too broad powers to the agencies as well as about federal agencies making radical changes in policies without really explaining themselves. There are going to be a check and balance against the agencies. As you mentioned it is not just the Supreme Court, but the lower courts have also become much interested in these issues and they are elevating these questions that eventually become Supreme Court cases.
There are increasingly vocal debates about the nature and uniqueness of the American way of life. The Claremont Institute recently launched a project that specifically aims to address this question. How, in your view, could the growth of the “bureaucracy” either influence or distort the American way of life?
One of the greatest analysts of the American way of life was Alexis de Tocqueville, who travelled in the United States in the 19th century and wrote about his travels. One of the many things he focused on is the nature of administration in America. In his time, when he toured in America, administration was not a huge, centralized monolith governing the country at large. At that time, administration spread out through the country. It was not entirely distinct from local communities. This was an integral part of local life and local government in a way that you did not have this outside force trying to shape these communities. Instead, local life and federal administration were deeply intertwined with one another. Today there is a risk that in modern administration, people with power are not necessarily fond of traditional American habits, religion, and way of life.