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Rein In the Administrative State

Charles I would disagree.


Karl Rove predicts that the courts and American voters will react negatively if the Biden administration follows the advice of progressive Democrats to rule even more by administrative (“executive”) diktat (“2022 Midterm Strategy Pulls Democrats Apart,” March 24). I hope Mr. Rove is correct.

Refined by the Tudors and Stuarts to circumvent common law and Parliament, such prerogative-court-like measures have no place in a liberal democratic republic. They are incompatible with the rule of law generally, and with the U.S. Constitution specifically. As Columbia University law professor Philip Hamburger summarizes, “Being not law but a mode of evasion, which flows around law and law-like things, administrative power has flowed around the Constitution’s pathways of power and even around formal administrative pathways, thus creating a cascade of evasions.”*

It’s long past time for the president and Congress to stop these unlawful evasions – to stop harassing the American people with diktats issued in violation of constitutionally prescribed procedures. And it’s long past time, too, for the courts to rein in this grotesque abuse of power.


Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA  22030

* Philip Hambuger, The Administrative Threat (New York: Encounter Books, 2020), pages 16-17.