Moderating the power of the administrative state means giving power back to Congress and eliminating judicial deference.
Michael Greve has a great post on the German origins of progressive Administration Law in the United States. Michael notes that the German tradition was not all bad – instead there was a liberal and legal tradition of judicial review in Germany, which did not employ deference. The progressives borrowed most of the bad stuff.
This German idea of the Rechtsstaat – of a state or of government bound by the rule of law – was one that was celebrated by Austrian scholar Friedrich Hayek. Hayek, while known as a Nobel Prize winning economist and a political theorist, also studied law in Vienna where he imbibed the ideal of the Rechtsstaat.
In The Constitution of Liberty, Hayek devotes a portion of the book to the development of a law of liberty. Hayek’s approach is to discuss various countries’ distinctive contributions, from England to the United States to Germany. Hayek argues that the movement for liberty reached Germany last and therefore its contribution was in many ways the most developed and the one that best fits the modern world.
Hayek’s description of the Rechtsstaat is similar to Greve’s. Hayek saw it as the view that all administrative action had to be subjected to a legal test applied by judges. He writes: “The guiding ideal which profoundly affected the liberal movement of the nineteenth century was that all exercise of administrative power over the person or property of the citizen should be made subject to judicial review.”
But Hayek recognized that the ideal was never fully realized in Germany and that it was departed from just as it was about to be fully adopted. He writes: “The completion of the structure designed to serve the ideal of the rule of law [through judicial review of bureaucratic decisionmaking] more or less coincided with the abandonment of the ideal. Just as the new device was introduced, there commenced a major reversal of intellectual trends; the conceptions of liberalism, with the Rechtsstaat as its main goal, were abandoned.