"Administrative Law: The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" (2000) is an article by American economist Stephen P. Dresch arguing that the administrative state threatens civil liberties in the United States. Dresch's piece examines the foundation and legitimacy of the administrative state's authority, factors that have contributed to its growth, and the subsequent impact on personal freedoms and constitutional rights.[1]
HIGHLIGHTS
Source: Prepared for publication in Cornerstone: National Newspaper on Property Rights (Boise, Idaho); archived by Jhéön & Associates and Forensic Intelligence International. Dated February 24, 2000.[1][2]
Abstract: Dresch's article argues that the administrative state's authority is rooted in the government's police powers and highlights key elements that he considers to be contributing growth factors. He then describes how he believes penalization by the administrative state circumvents citizens' constitutional protections and discusses the consequent change in the relationship between the government and the governed.
Author
Stephen P. Dresch (1943-2006) was an American economist, consultant, and politician. Below is a summary of Dresch's education and career:[3][4][5]
- Academic degrees:
- A.B. in philosophy (1963), Miami University, Oxford, Ohio
- Ph.D. (1970) and M.Phil. (1966) in economics, Yale University, New Haven, Connecticut
- 1972-1975: Research director and lecturer in economics, Yale University
- 1985-1990: Dean and professor, School of Business and Engineering Administration, Michigan Technological University
- 1991-1992: Member, Michigan House of Representatives
- 1992-2006: Consultant and expert witness
- Consultant, Ford Foundation
- Adjunct Scholar, Mackinac Center for Public Policy
Origins and characteristics of the administrative state
According to Dresch's article, the administrative state derives its authority from the police powers of the state, which are intended to protect citizens from potential harm. Dresch argues that the concept of potential harm is not clearly defined and thus administrative regulation has been able to grow unchecked.
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But, while criminal law attempts to define a bright line between permissible and impermissible behavior, administrative regulation focuses on the consequences of otherwise noncriminal behavior when those consequences are deemed potentially harmful to the community.
As a concept, however, potential harm is imprecise, vague and often, ultimately, highly subjective, rendering this exercise of the state’s police power very elastic, ideal for the purposes of a selfaggrandizing class of governing politicians and bureaucrats.[6]
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Dresch further argues that as a result of its intention to protect citizens from harm, the administrative state criminalizes actions that were previously considered to be legal behaviors.
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Subjected to regulation, an act is 'legal' only when permitted by the state’s regulators, whose permission can be conditioned on the petitioner’s fulfillment of requirements ostensibly designed to prevent or minimize potential harm. A failure to obtain the regulators' permission or to comply with the conditions imposed by the regulators subjects the unfortunate violator to prosecution. This process turns the general tenets of Anglo-Saxon common law on their heads.
In criminal law an act is permitted unless it is explicitly declared, by statute or common law, to be illegal. In the regulatory state, in contrast, an act, although 'legal,' is impermissible unless the regulators have explicitly granted the prospective actor permission to engage in it.[6]
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Dresch's article asserts that the administrative state's preference to penalize offenders through civil litigation rather than criminal procedures is deliberately intended to circumvent the due process rights and constitutional protections of American citizens. According to Dresch, civil defendants operate from a legally weaker position than criminal defendants, which makes civil litigation the ideal avenue to pursue administrative penalties.
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Effectively, when the civil standard of guilt 'by a preponderance of the evidence' replaces the criminal standard of guilt 'beyond a reasonable doubt,' the defendant is denied the presumption of innocence. A criminal defendant might offer no defense and yet be found not guilty because the prosecution’s case was not so strong as to overcome the 'reasonable doubt' of the jury. In contrast, a civil defendant who offers no evidence of his innocence will invariably be found guilty 'by a preponderance of the evidence' if the prosecution offers any evidence of guilt at all, no matter how flimsy. Thus, the civil defendant is deemed guilty and denied significant constitutional protections.[6]
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Factors in the expansion of the administrative state
Dresch's article puts forth three contributing factors that have aided the growth of the administrative state. The first claim states that the public is less alarmed by regulation than outright legal prohibition. Thus, in the absence of public resistance, administrative regulations have flourished.
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The experience of Prohibition graphically demonstrated the severe resistance which the state risks when it attempts to define as a crime any traditionally noncriminal act. In contrast, people acquiesce more willingly to the infringement of even fundamental liberties when the infringement takes the form of regulations (as opposed to outright prohibitions) which can be argued to prevent some unintended harm.[6]
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Moreover, Dresch argues that states have become dependent on administrative regulations as revenue sources. The administrative state has continued to grow as states have increased revenues from associated fees and penalties.
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Second, many laws, criminal as well as civil, have as a principal, if not sole, purpose the generation of revenue for the state. That is, the state does not really care whether or not people perform the prohibited acts; its only interest is in collecting the fines imposed on violators of the law. However, if state income is the object, then regulation, with its permit fees and other charges, and civil prosecution, with its financial penalties, its lower standard of proof and its denial of fundamental constitutional protections to the defendant, are vastly more efficient than criminal prosecution.[6]
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Lastly, Dresch claims that the administrative state has grown as a means of supporting an entrenched political class that maintains influence by granting regulatory favors.
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Third, and perhaps most importantly, regulation provides the political apparatus with access to the resources (political contributions and bribes) necessary to retain power. Essentially, the governing political and bureaucratic elites and their minions can 'sell' regulatory indulgences and penalize competitors of the indulged.[6]
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Consequences of the administrative state
Dresch's article identifies three consequences of the administrative state, first arguing that the administrative state has worked to infringe citizens' legal rights and further claiming that the financial tools of the regulatory process, such as permits and penalties, have become subject to corruption.
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First, when an action is taken with the permission of regulators, those truly harmed by the action may find that their ability to secure relief through tort law has been severely compromised, simply because the fact that regulatory requirements were fulfilled becomes a strong defense. Second, the sale of an ever broader array of indulgences (permits, exemptions from regulation, regulatory punishment of competitors) gives rise to a progressively more entrenched and corrupt political class.[6]
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Lastly, the article contends that the administrative state has replaced citizens' constitutional rights with a system of government-granted permissions, which the government then has the authority to rescind at will.
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The most destructive consequence, however, is the emergence of the concessionary state. The rights of a citizen are subverted, replaced by the concessions which are granted and may be withdrawn by the state. As a result, the relationship between the state and the citizen is fundamentally altered. The sovereignty of the citizen is replaced by the state’s sovereignty over the citizen.[6]
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Reversing the administrative state
Dresch's article calls for a reversal of the development of the administrative state in order to promote and preserve liberty.
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Characterized by late Justice Felix Frankfurter as 'this illegitimate exotic,' overwhelming a profession 'which for years had been told of its steady advance by the lonely watchers in the tower,' over the course of the Twentieth Century administrative law and the regulatory regime through which it is implemented have made the transition from infancy to a bloated (one might say, sclerotic) maturity, posing a threat at least as sinister as any emanating in this century from any foreign power, choking off the tender shoots of liberty at their roots. ...
The challenge of the Twentyfirst Century is to reverse the Twentieth Century's triumph of the administrative state. In this struggle the future of liberty will hang in the balance.[6]
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See also
Full text
- ↑ 1.0 1.1 Jhéön & Associates, "Administrative Law: The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower," February 24, 2000
- ↑ University of Wisconsin-Madison Libraries, "Citation Data - Cornerstone," accessed November 3, 2017
- ↑ Mackinac Center for Public Policy, "Obituary for Stephen P. Dresch," accessed July 13, 2017
- ↑ Mackinac Center for Public Policy, "Dr. Stephen P. Dresch," accessed July 13, 2017
- ↑ Jhéön & Associates, "Principals of Jhéön & Associates," accessed July 13, 2017
- ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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