Delegation and the Administrative State: First Steps Towards Fixing Our Rule of Law Paradox
Over the last millennium, the rule of law became the lodestar for successful polities. Magna Carta, Harrington’s Oceana, Montesquieu’s Spirit, Hume’s Essays, John Adams’ draft of Massachusetts’ revolutionary-era constitution, and later works articulated predicates for constraining government to protect liberty through a “government of laws, not of men.” The essential elements of the rule of law are limited but powerful: conduct can be regulated only through laws of general applicability announced in advance by the legitimate law-making authority and enforced through processes that guard against biases of enforcers. These elements promote qualities of legitimacy and “principled predictability” — they restrict the ambit of control over our lives, allow us to know the rules we must live by, and conform rules-in-practice to the first-order written rules.
The rule of law encompasses concepts of due process and separated powers, concepts instrumental to a government where law rules. Yet, the rule of law is not coextensive with all concepts associated with just rule. The rule of law does not guarantee justice or conformity to any particular substantive vision of the good. It does not, for example, guarantee laws based on Aristotelean or Aquinian ideals or implementation based on Solomonic wisdom.
But the rule of law’s limitations on official discretion vastly improve prospects for liberty and diminish risks of tyranny. That is why societies’ success in providing the requisites for human flourishing broadly correlates with their commitment to the rule of law, not the law of rulers.
This essay explains how the United States’ national governance comports with the rule-of-law ideal, particularly with respect to rulemaking authority exercised by administrators and related constraints on official discretion. And, while it paints a less than entirely flattering picture, it suggests that one expected change may make things better.
