A Prayer for the Administrative State

In February 2017, Steve Bannon, then senior counselor and chief strategist to President Donald Trump, pledged to a gathering of the Conservative Political Action Conference (CPAC; initiates pronounce it “See-Pack”) that the Trump administration would bring about “the deconstruction of the administrative state.” Bannon’s choice of the word “deconstruction” raises some possibility that he had in mind a textual interrogation in the style of Derrida. Laugh if you want, but Bannon claims an eclectic variety of intellectual influences, and the anti-regulatory movement that Bannon embraced did begin, in the 1940s, as a quixotic rejection of that same empiricism against which Derrida famously rebelled (“Il n’y a pas de hors-texte“). More likely, though, Bannon was using the word “deconstruction” as would a real estate tycoon such as his boss, to mean dismantlement and demolition. The “progressive left,” Bannon told See-Pack, when it can’t pass a law, “they’re just going to put in some sort of regulation in an agency. That’s all going to be deconstructed and I think that that’s why this regulatory thing is so important.” Kaboom!    Already the wrecking ball was swinging. Reactionary federal judges had for decades been undermining federal agencies, egged on by conservative scholars such as Philip Hamburger of Columbia Law School, the author in 2014 of the treatise, Is Administrative Law Unlawful? Anti-regulation legal theorists are legatees of the “nine old men” of the Supreme Court who, through much of the 1930s, resisted President Franklin Roosevelt’s efforts to bring regulation up to date with the previous half-century of industrialization. The high court made its peace with the New Deal in 1937 after Roosevelt threatened to expand its membership to fifteen. Today’s warriors against the administrative state see this as one of history’s tragic wrong turns.   As president, Trump attacked the administrative state not

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