Anatomy of the Administrative State

Do you approve of the nanny state? Nearly everybody does. 

One can’t blame people for their devotion. Most of them have lived their lives under the nanny state – or the “administrative state,” as it is more formally known. They think that government exists to manage society and solve social problems for the common good. What else is government for?

But now some people are not so sure. The COVID-19 train wreck unfolded before their eyes. One senseless government diktat followed another. Close your business. Keep your kids home from school. Stay out of the park. Wear a mask to go into the store. Take a vaccine to keep your job. These edicts destroyed lives. They caused vaccine injuries and deaths, cancelled jobs and education, and tore families apart. They eviscerated civil liberties. Society unravelled.

But not everyone can see that our own government did this. Some are blinded by their faith in the benevolence of state authorities. Others struggle with cognitive dissonance. Traumatized, they sift through the ashes of the past three years, looking for explanations. Why did government fail?

It did not fail. The administrative state excelled beyond its wildest dreams. The COVID regime has been its pinnacle achievement, at least so far. 

To defeat COVID collectivism, we must reject the nanny state. 

Separation of Powers

“Give me liberty or give me death!” declared Patrick Henry in 1775, urging the Second Virginia Convention to deliver troops for the Revolutionary War. He and his compatriots were fighting the oppression of the British Crown. Today our oppression comes not from foreign lands but from our own state, which dominates our lives in every conceivable way. 

American revolutionaries would not comprehend the extent to which the state now controls our lives. Its tentacles are everywhere. COVID is merely the leading case. Our technocratic overlords regulate fishing rods, dog food, cow flatulence, and the holes in Swiss cheese. They supervise our speech, employment, bank accounts, and media. They indoctrinate our children. They control the money supply, the interest rate, and the terms of credit. They track, direct, incentivize, censor, punish, redistribute, subsidize, tax, license, and inspect. 

It wasn’t supposed to be this way. The King once ruled England with absolute power. Centuries of struggle and social evolution eventually produced a radically different legal order in Anglo-American countries. The constitutional architecture of the United Kingdom, United States, Canada, Australia, and New Zealand does not feature an all-powerful executive. Instead, to achieve “the rule of law,” their state authorities are divided into three parts: legislatures, administration or executive branch, and judiciary. 

These three branches do distinct jobs. Legislatures pass rules. The administration enforces and executes those rules. Courts apply the rules to specific disputes. This “separation of powers” is the foundation of the rule of law. Keeping them apart protects us. If each branch can do only its own job, power cannot concentrate in any one. No single person or authority can apply their own preferences.

As Friedrich Hayek put it, “It is because the lawgiver does not know the particular cases to which his rules will apply, and it is because the judge who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule.”

With few exceptions, the administrative branch has power to do nothing except that which a statute specifically provides. Government bodies – that is, everything not legislature or court, including cabinets, departments, ministries, agencies, public health officials, commissions, tribunals, regulators, law enforcement, and inspectors – are supervised by the other two branches. “I know of no duty of the Court which it is more important to observe, and no powers of the Court which it is more important to enforce, than its power of keeping public bodies within their rights,” wrote Lindley M.R. in an 1899 UK case. “The moment public bodies exceed their rights they do so to the injury and oppression of private individuals.”

The Unholy Trinity of the Administrative State

But that was then. Slowly but inexorably, the legal ground has shifted beneath our feet. Separation of powers has eroded. We have moved away from the rule of law back towards rule by fiat. Control resides not in a monarch but in a professional managerial aristocracy. 

Legislatures, instead of enacting rules, pass statutes that delegate rule-making authority. They empower the administration to make regulations, orders, policies, and decisions of all kinds. The legislature has abdicated its responsibility. The administrative branch, not the legislature, is now making the bulk of the rules. 

Instead of curbing this practice as a violation of the separation of powers principle, courts have long said, “No problem.” And courts now tend to defer to administrative action, even when the officer or agency in question colors outside the lines of the statute’s mandate. Judges don’t want to look too closely to see if officials are acting strictly within the limits of their formal authority, because after all, goes the story, officials and technocrats are the ones with expertise. Courts now defer to public authorities to do as they think best in the “public interest.”

Instead of the rule of law, we have the Unholy Trinity of the Administrative State: delegation from the legislature, deference from the courts, and discretion for the administration to decide the public good. Instead of separation, we have concentrated power. Instead of checks and balances between the three branches, they are all on the same page, cooperating to empower the state’s management of society. Officials and experts place individual autonomy aside in the name of public welfare and progressive causes. Broad discretion in the hands of a technocratic managerial class has become the foundation of our modern system of government. 

Unlike COVID, which transformed society with a fury, the administrative state triumphed slowly over many decades. Its exact origins and timing are matters of debate. In the US, the New Deal paved the way, legitimized by the Great Depression. The UK, battered by World War Two, doubled down on state control when the war was done. In Canada, state paternalism has long been part of the national identity. Whatever its historical roots, the managerial nanny state is ascendant in the Anglo-American world. 

Discretion is the Premise. The Premise Dictates the Conclusion

Consider an elementary example of deductive reasoning. Cats have tails. Felix is a cat. Therefore, Felix has a tail. The premise (cats have tails), plus evidence or minor premise (Felix is a cat), produces a conclusion (Felix has a tail). The conclusion presumes that the premise is correct.

The same simplistic reasoning applies to the administrative state. The premise: officials have discretion to decide the public good. Evidence: officials mandated a vaccine. Conclusion: the vaccine mandate is for the public good. The conclusion follows from the premise.

Note the nature of the evidence, which is not about the vaccine. It does not speak to its efficacy or safety. It is not evidence about whether the vaccine is in the public good. Instead, the evidence shows what officials decided. Officials have the discretion to decide the public good. No argument can challenge the conclusion without attacking that premise. Objecting to government policies by proffering evidence that they are not in the public good is a fool’s errand. 

Put another way: “Public good” is not an objective measure. Like beauty, it lies in the eyes of the beholder. Since the administrative state rests on its discretion to decide the public good, it alone can define what public good means. Policies make trade-offs. Trade-offs reflect values. Values are political, not factual. Evidence may be relevant but never determinative. An avalanche of data showing that electric cars provide no comparable environmental benefit will not nullify rules that mandate the sale of electric vehicles. Through their own ideological lens, governments decide where the public interest lies.

Arguments challenging COVID policies abound. Lockdowns caused more harm than good. Masks did not prevent the spread of the virus. The mRNA vaccines were not vaccines, and their risks outweighed their benefits. Propaganda caused unnecessary fear. Medical censorship prevented doctors from speaking the truth. These objections miss the plot. They argue, using evidence of bad outcomes, that public good was not achieved. But state officials don’t have to show that their policies achieved public good, since the meaning of public good is up to them.

Paradoxically, criticizing the state’s policies legitimizes its control. Alleging that lockdowns are bad because they cause harm implies that they are good if they work. Challenging vaccine mandates because vaccines are dangerous attacks the vaccines, not the mandates. If policies are bad only because they don’t work, they are good when they do. 

When COVID madness descended, people thought the law would save them. Some found lawyers to challenge the rules. Some defied restrictions and disputed their tickets. These efforts failed to turn the ship around. Courts did not repudiate the pandemic regime. That is not surprising, since courts helped to establish the administrative state in the first place, long before there was a virus. 

The Administrative State is its Own Purpose

The nanny state is neither neutral nor benign. It exists to exist. It controls to control. The public has been persuaded that public administration is indispensable. Modern life is too complex, they think, not to be managed by an expansive and knowledgeable bureaucracy. They have been taught to confuse authority with substance. As Catholic philosopher Ivan Illich wrote, people have been schooled to confuse the existence of institutions with the objectives that the institutions claim to pursue. “Medical treatment is mistaken for health care, social work for the improvement of community life … Health, learning, dignity, independence, and creative endeavor are defined as little more than the performance of the institutions which claim to serve these ends.”

The state’s “pandemic management” hurt more than it helped. As Professor Denis Rancourt put it to the National Citizens Inquiry in Ottawa, if governments had done nothing out of the ordinary, had not announced a pandemic, and had not responded to a presumed pathogen in the way that it did, there would have been no excess mortality. But the nanny state’s performance is never reviewed or compared to the alternatives because none are thought to exist. That is the real triumph of the administrative state. It dominates the room yet is regarded as simply part of the furniture.

Free people act without regard for public good. Those who cringe at that notion have succumbed to our brave not-so-new world of subservience, collective impoverishment, and concurrent beliefs. Of course, on balance, acting freely in our own self-interest enhances the welfare of the whole. The free market’s invisible hand produces prosperity in a way no collection of policies ever could. But neither safety nor prosperity is what makes freedom right. Liberty is not merely the means to welfare and good outcomes, even if it happens to work out that way. As Friedrich Hayek observed, “Freedom granted only when it is known beforehand that its effects will be beneficial is not freedom.” 

With few exceptions, the problem is not the content of policy but its very existence. If lockdowns had succeeded, they would still have restrained people against their will. If COVID vaccines were safe and effective, mandates still take medical decisions away from individuals. These policies were wrong for the coercion they imposed, not the goals they failed to achieve.

The conceit of our functionaries has become intolerable. Most public policy, good or bad, is illegitimate. No doubt there are subjects – foreign relations, public infrastructure – where government policy may be necessary. But these are exceptions to the general rule: people’s lives are their own. 

The King’s absolute power served him, not his subjects. People who believe that the administrative state is different have been hoodwinked. By debating the niceties of policy, we quibble in the margins and surrender the battlefield. “Give us liberty,” we might say, “or just do what you think best.” Patrick Henry would not be impressed.

This article is a chapter is from the new book, Canary in a COVID World: How propaganda and censorship changed our (my) world, edited by C.H. Klotz.