During his tenure on the Supreme Court, Justice Clarence Thomas has questioned the constitutional basis with respect to the growth of the administrative state, whereby a federal agency amasses legislative, executive, and judicial de facto powers. He has raised concerns that this development is contrary to the Founders intentional design in the Constitution to separate the powers of those three branches, and this amassing of power is a threat to our liberty.
After three decades of service on the court, few know Thomas beyond his contentious confirmation and the surrounding media firestorm. The following interview is an excerpt from “Created Equal: Clarence Thomas in His Own Words,” where Thomas unpacks his views on the administrative state and much more.
Michael Pack: Let me ask you about another set of issues that have come up. You’ve been a leader in the administrative state cases. What is at stake there? It seems to be a question of liberty again.
Clarence Thomas: The very people who say they don’t want the government in their lives want this sort of expansive administrative state, which is in their lives, and then every aspect of their lives. And a lot of it comes at the expense of the very structure of the Constitution that is intended to prevent the government from coming in. The separation of powers, the enumerated powers, federalism. The whole point was to keep the government in this box. Justice Scalia and I often talked about that, that the structure was the main way to protect your liberty. The danger in the administrative state is seeing those powers all coalesce again in various agencies. If you think about your life today, there’s very little major legislation that comes from the legislature. The legislation comes in the form of regulations from agencies. They tend to have all three powers. They have the executive power, the enforcement power, they have administrative judges to adjudicate, so they have all three. And the question for us is, where do they fit in the constitutional structure?
When a private right is somehow intruded upon by one of these agencies, what is the role of the federal courts? If we simply defer to the agencies, which is what we do now, in many cases, aren’t we doing precisely what happened when it came to the royal courts of the pre-Revolutionary era? How does that make us any different? You’ve got this creation that sits over here outside the Constitution, or beyond the Constitution. How does it fit within our constitutional structure? How’s it limited and what is the risk that it will actually vitiate the constitutional protections that we have?
We have a form of government where we’ve limited the national government in what it can do. We’ve separated the powers. You’ve got enumerated powers. One of the ways that we’ve limited the national government is to divide the power. You said, “Here’s the legislative power, here’s the judicial power, here’s the executive power. That structure was very important to keeping the national government at bay. You also had federalism, in other words, that the states had most of the authority, and certainly the local authority, beyond what was in the Constitution and the rest remained with the individuals.
MP: I think it was James Madison who said that if you combine the executive, legislative, and judicial in one person, or branch, it’s the very definition of tyranny.
CT: That’s wonderful rhetoric, and it plays out that way when people look at agencies, and they think, “Of course I have no way to defend myself against an agency.” And what we have simply been trying to do is to raise the question of what are the limits of that. There are different views about it. But at least when you look back at guys like [Frank] Goodnow or Woodrow Wilson or the Progressives at the close of the nineteenth century and in the early twentieth century, at least you have the advantage of them being candid. To some extent, they meant “progress”—to progress beyond the Constitution. And how that is consistent with the Constitution is something I think is worth discussing.
MP: They were clear, too, that they believed in experts and agencies rather than in traditional legislating by elected members of Congress.
CT: I think to some extent they thought that the quaint ideas that the Framers had were anachronistic, at best, and that you could have someone who understood how a government should operate or how a policy should operate. Once you lose the notion of self-governing, that of self-governance, then where are we? And I think the stark choices are between government by consent and being ruled. And perhaps some people think that we can have a little of both. But good luck! I think the tendency throughout history is that once people get authority to rule, they tend to rule more, not less.
MP: When people use the expression, “the administrative state,” what does that mean?
CT: I think that’s their way of saying we’re being governed by administrative agencies. And it’s like affirmative action, who knows? You get a sense of what they’re talking about, but I think we have to be more precise in defining the relationship between, say, a specific agency and the constitutional protections. I think most people don’t follow administrative cases and they don’t think about the role of these financial boards or the environmental boards. People like a particular policy. Then they’ll argue about the policy and not think about how you got to that policy. And I think how you got there, and by what authority, is the more important question for us, not the policy itself.
MP: The phrase “the administrative state,” itself, implies that each of these little agencies has some particular role, but when you accumulate all of them together, it looks like almost a fourth branch of government.
CT: I don’t know which agencies are little anymore. I ran EEOC and it was small. But look at the reach and the effect that you could have. I ran that little Office of Civil Rights at the Department of Education, look at the reach and the things that it could affect. So the reach is nationwide.
Mark Paoletta and Michael Pack are co-editors of the forthcoming book “Created Equal: Clarence Thomas in His Own Words,” taken from more than 25 hours of interviews with Justice Thomas conducted for the documentary of the same name. Pack produced and directed that film as well as over 15 other nationally broadcast documentaries. Paoletta is an attorney and worked on Justice Thomas’ confirmation.
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