Internal Revenue Service (IRS) Building in Washington, DC.

Steve Bannon, man of many collars and a lost-at-sea countenance, and the alt-right’s high priest of economic nationalism, is obsessed with deconstruction of the administrative state. Bannon’s curriculum vitae proves he’s a very intelligent man, but, as I see him, he’s neither a wise man, nor, I will explain later, a virtuous man. This piece, however, is not about Bannon’s flawed character or the goofy way he dresses and grooms himself, but about his error in advocating for deconstruction of the administrative state.

I once thought Bannon created the term “administrative state.” He didn’t. It’s been around longer than he’s been alive. It was coined around the time of passage of the Administrative Procedures Act (APA) in 1946.[1] When he talks about the administrative state, though, it comes across as a pejorative expression of his contempt for globalism, taxation, and the government’s regulatory agencies. This piece focuses on the lattermost aspect, governmental agencies, a/k/a, “the bureaucracy”; those places, he claims, which are populated with unelected, indifferent, tenured civil servants doing unnecessary, unproductive work whose end result is the loss of our liberties and individualism, or, in his words, the loss of American sovereignty. He, like virtually all Republicans, complains that these agencies are hyper-micro-managing the country through progress-choking, freedom-robbing regulations written by unaccountable civil servants.
The extreme alt-right, moreover, seeks more than reform or more deregulation. It seeks the deconstruction of the administrative state by permanently dissolving some agencies and restructuring the rest to fit their idea of bureaucracy as one performing the minimal necessary duties in support of only our most vital and essential functions.
The extreme alt-right, moreover, seeks more than reform or more deregulation. It seeks the deconstruction of the administrative state by permanently dissolving some agencies and restructuring the rest to fit their idea of bureaucracy as one performing the minimal necessary duties in support of only our most vital and essential functions

I’m not buying it. Our administrative state is far from what it ought to be, but the alternative is a recipe for extreme laissez-faire governance, a throwback to the so-called Gilded Age of the nineteenth century when an elite cabal of monopolists controlled the economy, the politicians and the courts, and unwittingly become the midwives for the birth of a new kind of American: the socialist.

I begin by positing that government, on the one hand, has no choice but to govern. If the central government is unwilling or unable to govern, the consequences are catastrophic. Remember what happened when the Roman Empire became too weak and vulnerable to govern during the fifth century: Europe fragmented into hundreds of manorial estates owned by the nobility and the church, and, for several centuries, there was feudalism wherein 98% of the people toiled in poverty to support the elite 2%. Fortunately, America is blessed with history’s best – but not perfect – blueprint for life, liberty and the pursuit of happiness.

American constitutional government is a highly refined machine capable of running forever. All it needs is the right fuel. That fuel is virtue.

American constitutional government is a highly refined machine capable of running forever. All it needs is the right fuel. That fuel is virtue.

The private sector, on the other hand, has no legal obligations to the government other than to obey the law. It has no affirmative legal duty to partner with government in carrying out government’s fourfold mission to establish justice, ensure domestic tranquility, provide for the common defense, and promote the general welfare.[2] Fortunately, many elements of the private sector voluntarily support the government’s mission, charities and philanthropy being prime examples of promoting the general welfare. Other private elements, sadly – and sometimes even tragically – do not support the government’s mission. For example, the gun industry threatens our domestic tranquility by influencing passage of insanely lenient gun laws and flooding the marketplace with so many firearms that America, of all wealthy, industrial nations, is clearly the most dangerous place to live.[3] Consequently, how and to what extent the private sector acts determines, in large part, how the government must, or should, react.

My honors economics professor taught us that government must do that which the private sector is either unable or unwilling to do. Well then, what is it that government ought to do? Easy. It’s clearly stated in the aforementioned fourfold mission statement contained in the Preamble of the United States Constitution. While there are some duties and responsibilities which, by law, are exclusively within the government’s orbit, the private sector has an implicit invitation to support each and every governmental mission to the extent possible and allowable. For example, the private sector has no direct responsibility over the armed forces, but because morale is a key component of military strength and preparedness, USO volunteers are helping to provide for the common defense by boosting troop morale. Without USO volunteers the Defense Department would either be forced hire more personnel to fill the gap or drop these morale-boosting services altogether.

I was so impressed with my professor’s pearl of wisdom that it became one of the core principles of my political thinking. I was a conservative college senior when I heard that, and yet it still works for me today even though I have long since crossed from center right over to center left. I even developed my own corollary to it: government must be the size it has to be, no more and no less, in order to effectively fulfill that fourfold mission statement. For me, big and small are the wrong adjectives to describe government. I prefer “right-sized.” After all, don’t we purchase shoes that are neither too big nor too small?

So, a right-sized government is one that is doing its job without falling short or overreaching. What then, are the determining factors for a right-sized government? I’m going to give you just one – virtue.[4]

Thomas Jefferson and Alexander Hamilton were both fervent supporters of the American Revolution, both were passionate about replacing autocracy (monarchy) with liberal democracy and republican self-governance, and yet both were bitter rivals over what our new government should look like. Despite their intense antipathy for each other’s political policies, they both agreed on one thing: whatever shape our new government would take, it would not work in a country whose people and leaders lacked virtue.

In the Age of Enlightenment in which Jefferson and Hamilton lived, virtue was a vital element of the social contract theories of Hobbes, Locke, Rousseau, and others, which helped set the foundation of American liberal democracy.[5] And this brings me to my next corollary to my first: the size of government is inversely proportional to the level of virtue among the people it serves and its leaders. A small government is all that is required for a nation of virtuous people led by virtuous leaders, whereas a larger government is required to reign in the corruptive tendencies of the non-virtuous.

What was virtue to our founding fathers and mothers and why was it so important? Virtue today is a word which has fallen into scarce usage, having lost some of its original meaning and force.[6] However, from Greek antiquity through the Age of Enlightenment, virtue was a very positive, highly valued quality of human character, highlighted by the four cardinal virtues: temperance (moderation), prudence (wisdom), justice (high moral standards) and fortitude (the will to soldier on). A virtuous person is truthful, compassionate, generous, loyal, fair, honorable, disciplined and possesses the courage of his or her convictions.

For me, civic, political and economic virtue is perhaps best summed up by a fictional character, Andrew Shepard, the U.S. President in the movie The American President: “America isn’t easy. America is advanced citizenship. You gotta want it bad.”

Back to the administrative state.

Government agencies exist for two reasons. The job of operating even a tiny government is too vast and complicated to be left up to elected officials, their chosen lieutenants, and some clerical staff. The United States Code is hardly a workable owner’s manual for every citizen and resident of our nation. Consequently, and first of all, government needs unelected, unappointed people, both expert and clerical, to explicate, clarify, guide and arbitrate the citizen’s relationship with the federal government; and that requires rules, regulations, tribunals and support systems. Secondly, not all Americans are virtuous people. Many of them lack virtue to the extent that they cannot be trusted to be left alone, ungoverned and unmanaged. Therefore, the administrative state, I regret to say, must react and respond to the corruptive tendencies and practices of those Americans who try to bend, stretch, circumvent, avoid or break the law; and, I might add, to assist the growing number of Americans who are ignorant of the law. The administrative state, after all, is not primarily a prosecutorial arm of the government. It exists to keep Americans on a path toward building a better nation. That’s why, when more people wander off the path, the administrative state needs more agencies and personnel to bring them back.

As the laws of Congress change, grow and become more complex, the administrative state needs to change and grow too as it fulfills its task of mediating between government’s Legislative and Executive Branches and the man and woman on the street. Moreover, for those who intentionally or inadvertently cross the line, the administrative state provides dispute resolution and other enforcement mechanisms to resolve disputes, thus mediating, when permissible, between the Judicial Branch and the man and woman on the street.

Here is one example in support of my proposition: the Internal Revenue Service. The Secretaries of the Treasury and their top lieutenants, all appointed by an elected President and/or confirmed by an elected Senate, cannot possibly manage the collection of taxes and enforcement of our tax laws, even with a much simpler tax code. Hence, we have the Internal Revenue Service. If Congress were to practice the cardinal virtues of moderation and prudence, it would establish a fair, simple, user-friendly tax code; and if, say, only 5% of all taxpayers cheated, instead of the current 15%, then the IRS would not need to employ anywhere near its current 80,000 full time workers. Then, at least one huge element of the administrative state would be able to shrink down to a smaller, yet still workable, size.

Congress, nevertheless, has given us an incredibly complex tax code, and because it cannot foresee every possible outcome of its tax scheme, government must hire thousands of employees, both clerical and professional, to provide guidance, whether in drafting hundreds of thousands of rules and regulations, or assisting unsophisticated taxpayers with preparing tax returns. Furthermore, because tens of millions of taxpayers, through cheating[7] or error, fail to pay what they legally owe to the tune of 100 billion dollars annually,[8]  the IRS must hire the necessary personnel in order to establish justice by collecting the taxes which are legally owed. Consequently, as long as taxpayers continue to subordinate virtue to greed, the IRS must grow to meet the challenge.[9]

Obviously, the civics lesson given herein is high school level stuff, but I firmly believe my professor’s and my theories have fundamental merit, and I believe Jefferson and Hamilton would agree. And I must stress that, while virtue is a two-way street between those who govern and those governed, it begins with those who lead. If lawmakers, for example, continue to demagogue about the IRS and advocate huge budget cuts for an already underfunded and weakened IRS, the top 1% will remain encouraged to do two things: (1) continue spending millions of dollars to retain anti-IRS, anti-fair-tax politicians in office; and (2) continue to avoid paying their fair share of taxes and get away with it.

I always believed that our government leaders, including judges, would, at the end of the day, possess enough wisdom and virtue to solve our economic, political and cultural problems in a civil, constitutional fashion. They would remain committed to looking for appropriate, albeit compromised, solutions to all challenges to American sovereignty. They would not allow the lesser angels within the private sector to undermine liberal democracy, be it Jeffersonian or Hamiltonian. Today, I’m not so sure. Influential people, like Mr. Bannon, are convincing tens of millions of citizens that conventional, constitutional administrative methodologies are no longer working and it’s time for “all hell to break loose.” Should America choose Bannon’s alternative of deconstruction of the administrative state, thus would begin the march back to the nineteenth century and the former Gilded Age, retrofitted with a new group of robber barons bereft of the essential virtues necessary to form a more perfect union.

I favor a virtuous administrative state operating within a right-sized government. Whether big or small, the administrative state must persevere in the quest to remain faithful to the Constitution and abide by its fourfold mission. The better people We the People are, the smaller the size of the administrative state. However, if the decline of virtue continues to deepen and widen within and among the public and private sectors, our great experiment in self-governance will go the way of the Roman Empire, and America will experience its own Dark Ages.

“Righteousness exalts a nation, but sin is a reproach to any people.”
Proverbs 14:34

Coming soon: “How I Would Sentence Trump in the Documents Case”

[1] The Administrative Procedure Act (APA) governs the process by which federal agencies develop and issue regulations. It sets forth rulemaking procedures and addresses other agency actions such as issuance of policy statements, licenses, and permits. It also provides standards for judicial review if a person has been adversely affected or aggrieved by an agency action.

[2] See the Preamble to the Constitution of the United States.

[3] Unfortunately, the government is not controlling gun safety because the gun industry controls too many lawmakers, a severe lapse of virtue in both sectors.

[4] Of course, there are other reasons for the size of government, for example population growth, but here I will concentrate on how virtue affects the size of government and why.

[5] Another eighteenth century giant, Adam Smith, wrote that a capitalist economy also could not succeed without virtue.

[6] It seems to be used more often in a pejorative, sarcastic sort of way. “Oh, he thinks he’s so full of virtue, but, believe me, he isn’t!” or “She’s always virtue signaling.”

[7] Cheating consists of filing fraudulent tax returns and the willful failure to file.

[8] It’s no secret that the biggest tax cheaters are the top 1% of the wealthiest taxpayers, usually through hiding and not reporting vast amounts of income.

[9] It’s clear the challenge isn’t being met because the IRS lacks the forensic resources to effectively audit all the highly complex tax returns of those super wealthy taxpayers who may be bending, stretching and circumventing the rule of law to avoid paying what they legitimately owe.