Before the administrative state was named, it was called the bureau government. Garet Garrett defined it in his book, The People’s Pottage. From a Mises Institute condensation, titled, “The American Empire,” (CC BY-NC-ND 4.0), we read,
What Empire needs above all in government is an executive power that can make immediate decisions, such as a decision in the middle of the night by the President to declare war on the aggressor…
The Federal income-tax law of 1914 gave the government unlimited access to wealth and, moreover, power for the first time to levy taxes not for revenue only but for social purposes, …for redistribution of the national wealth.
Congress received from the White House laws that were marked “must.” Its principal function was to enact and [fund] them. The part of the Supreme Court was to make everything square with the Constitution by a liberal reinterpretation of its language.
The word executive came to have its new connotation. For all the years before when you spoke of the executive power of government you meant only the power to execute and administer the laws. Henceforth it would mean the power to [rule].
Garrett concludes, “The result is Bureau Government, administered by bureaucrats who are not elected by the people…” He then examines the ways that executive power expands.
(1) By delegation. That is when the Congress delegates one or more of its constitutional powers to the President and authorizes him to exercise them.
(2) By reinterpretation of the language of the Constitution. That is done by a sympathetic Supreme Court.
(3) By innovation. That is when, in this changing world, the President does things that are not specifically forbidden by the Constitution because the founders never thought of them.
(4) By the appearance in the sphere of Executive Government of what are called administrative agencies, with power to issue rules and regulations that have the force of law.
(5) By usurpation. That is when the President willfully confronts Congress with what in statecraft is called the fait accompli – a thing already done – which Congress cannot repudiate without exposing the American government to the ridicule of nations…
(6) Lastly, the powers of Executive Government are bound to increase as the country becomes more and more involved in foreign affairs. This is true because, both traditionally and by the terms of the Constitution, the province of foreign affairs is one that belongs in a very special sense to the President.
Examining the administrative state more deeply, Garrett writes,
These [administrative] agencies have built up a large body of administrative law which people are obliged to obey. And not only do they make their own laws; they enforce their own laws, acting as prosecutor, jury and judge; and appeal from their decisions to the regular courts is difficult because the regular courts are obliged to take their findings of fact as final. Thus, the constitutional separation of the three governmental powers, namely, the legislative, the executive and the judicial, is entirely lost.
Garret wrote this seventy years ago. Sadly, generations of conservative opinion makers seem to have made their fortunes from this kind of material. Garrett was conveniently forgotten. The administrative state has only grown larger these many years.