The End is Nigh…or Is It?
The end of the administrative state has been proclaimed before. To give an example: A “legislative veto” occurs when Congress delegates rule-making and, perhaps, decisional authority to an agency but reserves to itself the power to override any such agency action by the vote of one or both houses. The Court in INS v. Chadha in 1983 decided that such a “legislative veto” provision in a federal statute violated the separation of powers because it evaded the requirement that a legislative act must pass both houses of Congress and be presented to the President. There was much teeth-gnashing (and some elation) that this would throw the administrative state into chaos. After all, many agencies had the same procedure, and Congress for years had given broad delegations of legislative power to agencies to make public policy because it had the “safety-valve” of the legislative veto if an agency went off the path of congressional policy.
As a result of Chadha, it was claimed, overriding an agency action by Congress would need both Houses and the President to agree, or Congress would need a 2/3 vote of each House if the President vetoed the Congress’s action. Because of these hurdles, Congress, now unable to build in a “legislative veto,” would hesitate to grant broad delegations of authority to the agencies. This was presented as calamitous by defenders of bureaucracies, while skeptics of the administrative state wondered just what the downside was of requiring clearer and more focused delegations by Congress.
Four decades later, here we are. The same issues are debated, and the same panicky arguments are heard. Even after President Bill Clinton famously declared in 1996, “The era of big government is over,” the size, reach, and intrusiveness of the federal bureaucracy can hardly be said to have been reduced. Plus ça change, plus c’est la même chose, loosely translated as “same s(ituation), different day.” No one would seriously claim that the federal government, in particular the bureaucracy, has been trimmed in policy reach, discretion, manpower, or funding—certainly not after the Patriot Act, the debacle of the Covid shutdowns, the ballooning size of the federal budget during administrations of both major parties, and the exposure by the current administration of fraud in the distributions of funds in federal programs, among many other indicators. For better or worse, mostly the latter, government by unelected elite “experts” seems to have survived the supposedly existential threat posed by Chadha quite well, thank you very much.
The Toxic Influence of Legal Elites
Moreover, there is a strong possibility that a future Supreme Court, perhaps augmented by a few “correct” thinkers should the Democrats regain control of the Presidency and the Congress, will overrule Slaughter and the other recent cases as “unworkable.” The federal courts, more often than not, are drawn from a very narrow elite of the legal profession, which itself also represents, by and large, a cultural and economic elite. Surveys show that attorneys are culturally and politically to the “left” of most Americans. That is even more glaring among the legal elite, that is, those who work at “Big Law,” participate in the legal establishment’s organizations, such as the American Bar Association, or aspire to be recognized as part of this select gentry, such as the law school professors and administrators.
There is a reason why these legal elites are so obsessively angry with the Supreme Court and why calls to “pack the Court” are becoming a litmus test for Democratic candidates. The problem is not the legal competency of the justices, the constitutional grounding of their opinions, or even the lack of diversity in their backgrounds (they have remarkably similar educational histories at top law schools and employment histories at establishment law firms, leading law schools, and/or significant government agencies, for example). The problem is that too many times for the taste of these privileged elites, a majority of the current Court has decided cases contrary to the policies and cultural values favored by those elites. Not all cases, but too many. These justices are despised by the legal elites as class traitors. There is a longing, indeed a frustration, to return to “normalcy,” when the Court could be counted on consistently to affirm the values of the elites over those of the masses.
Hence, the leftist elites fight in the courtrooms of selected lower court federal judges, with the hope that, sooner better than later, the Supreme Court can be captured in an elite counterrevolution and the traditional order restored. As an alternative, massive lawfare is launched against administrations and officials derided as “populist” or worse, with the expectation best expressed by the late left-wing federal judge Stephen Reinhardt of the 9th Circuit Court of Appeals, who, when asked by a sympathetic interviewer why he decided cases in a manner clearly against Supreme Court precedents he did not like, when his decisions likely would be reversed by the Supreme Court, responded, “They [the Supreme Court] can’t catch them all.” If the opportunity presents itself, there is a good chance that the progressive elite will seek to reverse Slaughter and the line of cases leading to it. Of course, the danger also might come from the opposite side, in that the same elite might find a bureaucracy under the control of a president with their ideology quite agreeable especially if a friendly Supreme Court goes lax in applying the non-delegation and independent review doctrines against agency action.
The Progressives Reacted to a Perceived Need
In the end, however, a constitution is simply a piece of paper (or a parchment, in this case), and a court opinion is just so many words. The working constitution is a matter of practice. The top-down government installed by the old Progressives, that is, de facto rule by an alleged elite of experts directing how the rest live, an elite unmoored from popular control as much as is politically tenable and functionally practical and following the guidance of a charismatic leader from their own class, is also the vision of the new progressives. At the same time, one must also acknowledge that the earlier Progressives were not tilting at windmills. The jump in the size of the population, the structure and complexity of the economy, and the erosion of social and cultural coherence gave their critiques a basis in reality which, in turn, provided credibility for their political program.
Those underlying conditions and strains remain (or have re-appeared), perhaps in somewhat different manifestations of little consequence to the broader discussion. The new progressives, connected like their predecessors to socialists and other collectivists, burrow into the economic and social crevices of discontent created by weaknesses and incoherence in the system. The remedies proposed by the new progressives/socialists are astoundingly similar to those of their ideological ancestors, at least at the generality of political slogans. Looking at the current political environment, they, too, are not tilting at windmills.
Differences between Progressives of Old and the Current Iteration
To take a half-step back, however: One should not overstate the similarity between these iterations of progressivism. There are also some major differences in their attitudes towards the country. They may have denigrated, or even despised, the traditional American constitutional order, but the 20th century Progressives would put MAGA-adherents to shame in their professed Americanism. During World War I, that might even be said about at least some of the Socialists. One need only read the speeches of Theodore Roosevelt and Woodrow Wilson about their contempt for what they called “hyphenated-Americans.” Here is TR in 1915: “There is no room in this country for hyphenated Americans…. A hyphenated American is not an American at all.” He was not referring to immigrants as such, but to anyone who took on this identity and anyone who opposed assimilation. Here is Wilson in 1919: “Any man who carries a hyphen about with him carries a dagger that he is ready to plunge into the vitals of this Republic whenever he gets ready.” Can anyone imagine current identity-obsessed progressives voicing such sentiments or even believing in Americanism?
As well, with few exceptions, such as Wisconsin’s Senator Robert LaFolette, Jr., the Progressives of that era were enthusiastic imperialists. Roosevelt’s “big navy” project as the basis for imperial adventures, the messianic—and unabashedly racist—approach to ruling foreign people because they were deemed incompetent to do so, Roosevelt’s campaign proposals in 1912 (dubbed the “New Nationalism”), and Wilson’s incitement of nationalist hysteria in World War I are the antithesis of the anti-American teachings and divisive slogans (“open borders, defund ICE, defund the police, abolish Whiteness, abolish prisons,” etc.) of the current progressives.
These particulars aside, there is a direct line which connects the Progressives and their descendants—as well as their cousins, the Socialists of the Old Left, the New Left, and the current Left—in their respective domestic policy proposals and their ideological contempt for the Constitution’s structure of diffused government and emphasis on individual rights. Gorsuch’s discussion in the cases leading up to and including Slaughter of the dangers of a system of government administered by an unelected bureaucracy overseen by a powerful leader is a perceptive warning. Perhaps the necessary structural reforms he proposes will be undertaken and the traditional constitutional order will be revived through the rebalancing of constitutional powers and obligations he proposes.
Gorsuch as a Modern-Day Cicero Warning about the Dangers to the Existing Republican Constitution
Yet the reader of the Slaughter opinion might be left with the nagging sense that Gorsuch is a modern-day Cicero lamenting the erosion of Roman republicanism during the first century B.C. It is worth remembering that, at the latest after the Third Punic War and the destruction of its rival Carthage, Rome and its classic republican institutions had to adjust from being a commercial city-state to the status of a de facto imperial power with an increasingly expansive and entrenched administrative structure. The Roman constitutional structure fractured from this pressure.
Classic republican political theory relied on homogeneity in language, religion, culture, and ethnicity (often represented by citizenship). These commonalities would provide the structure and social cohesion required for political stability and civic engagement. They give “form” to the collection of individuals and create a community and political commonwealth. One of the criticisms of democracy and the democratic mind in Plato’s Republic is their utter formlessness, which condemns them to chaos and lack of balance, which, in turn, dooms the individual to succumb to passion in his personal actions and the political system to either dissolution or “mobocracy” and tyranny.
Cicero, like Gorsuch in his concurrences, yearned for what once was and what must be brought back. Cicero overtly channeled Plato’s approach in the latter’s Republic in his own work by the same name. Cicero employed hypothesized conversations among various Roman statesmen who had significant influence on Rome’s unwritten, customary republican constitution to present a perhaps idealized Roman republic which he believed to be slipping away. Gorsuch does so through his textual and historical analysis of separation of powers and the President’s removal power. In another work, Laws, the title of which is also consciously parallel to Plato’s, Cicero, like Gorsuch, presented prescriptions how this constitution might be recovered to a practical extent.
Are the Progressives Correct that the Inherited Constitutional Structure of a Republic Is Not Equal to the Task of Governing Required in a Large Multi-Cultural and Multi-Ethnic Imperial Welfare State?
As we know, Cicero’s hope and his prescriptions were not realized, and the republic became the Roman monarchy which retained republican symbols and the hollowed-out republican structures. As the Roman experience cautions, a bureaucratic state administered by a cadre of experts under the political control of a powerful executive, exactly the constitutional model advocated by Woodrow Wilson and the Progressives, conforms much more readily to the political and social realities of a large, multi-cultural world power than does a classic republican system. One hopes that the republican soil which has underlain the American project retains enough robustness to sustain Justice Gorsuch’s prescriptions. The size of the country, the complexity of the economy, the comfort most people appear to have with a nanny-state big government (as long as others pay the bill), the fraying of social bonds, and the cultural currents which make appeals to the Constitution sound increasingly quaint and anachronistic, unfortunately leave much room for doubt.
The United States was able once to recover from the Progressives’ attempt to remodel society in their vision, during the “return to normalcy” of the 1920s. But Progressivism came back with a renewed vigor during the New Deal, and its acolytes subsequently made that system of elite, top-down government a political fixture over the following decades. For several years, though, it has appeared that the hold of the more recent version of the Progressive elite on the country might loosen. Unfortunately, the ideological cousins of the Progressives, the Socialists, are now ascendant in the Democratic Party and look to impose an even more anti-constitutional order on the country if they regain political control of Congress and the Presidency. As the difference between the patriotic celebration of the nation’s bicentennial in 1976 and the criticism and denunciations of the country on the occasion in 2026 of the 250th anniversary of the country’s independence demonstrated, one might question to what extent there still is an American identity which prevails over the tribal identities extolled by the current Left.
Does the Classic Republican Idea of Citizenship Retain Any Meaning?
On an even more basic level, can a people accustomed to the structural embrace and financial “largesse” of the administrative state, and imbued with a sense of entitlement to “free” things paid by others—or no one at all—while working not to produce those things but to realize one’s sense of self, really be expected to rouse themselves to a life of personal responsibility and independence. It has been said that “the larger the government, the smaller the citizen.” Does that last term even have any meaning today?
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