A Constitutional Absolutism? On Philip Hamburger’s The Administrative Threat. By Gerardo Muñoz.

AdministrativeThreatPhilip Hamburger’s most recent book, The Administrative Threat (Encounter Books, 2017), is a legal pamphlet as well as constitutional call to arms of sorts. Deliberately written for the general public with the intention of popularizing the central tenets of his otherwise more technical work Is Administrative Law Unlawful? (U Chicago Press, 2015), Hamburger fuses a warning with a call to question the increasing danger posed by the expansion of the administrative state in American public law. In his view, no other force and legal development is undermining the core and purpose of civil liberties as much as administrative law, which today extends to all spheres of social life. This bureaucratic power is not only an existential threat to personal freedoms, but also a betrayal to the original intent of the Constitution.

The idea harboring this perception is that decision-making is only possible on purely market or commercial grounds, which administration continuously obstructs under the guise of regulation. The book cuts sharply through a martial tone: “For better understanding of the administrative threat one must turn to law…for although much administrative state power is economically inefficient, all of it is unconstitutional” (Hamburger 2). But how did the development of legality and American public law reached such a boiling point? This a question that Hamburger must sidestep, and at times reduce to a barely credible narrative regarding a handful of American scholars that studied German administrative law at the turn of the last century. Hamburger accurately notes that in the last century (roughly from 1917 to 2017), there has only been ‘rise and rise’ of administrative delegation. This is undeniable. James M. Landis records in The Administrative Process (1938) about 12-14 federal agencies in 1933. Today there are between 240-456 federal agencies, including sub-agencies, quasi-agencies, and departments. And as if more alarm is needed, each landmark opinion through the century by the Supreme Court has incrementally extended agency statutory powers for execution and judicial interpretation.

In what follows, I want to critically comment the three premises that support Hamburger’s attack on the legitimacy of administrative state: 1. a historical comparison with the King James monarchy in order to make the case that we are returning to a regime of legal absolutism; 2. that we are witnessing the corruption of the separation of powers, which has expounded extralegal boundaries; 3. and the libertarian assumption that civil liberties are prey to the tyrannical might of the administrative state. Hence, as Hamburger says verbatim, the administrative state is fundamentally disloyal to at least two tiers of governmental authority: on the one hand, to an arcana, and on the other, the more real ground of civil liberties and negative freedom (Hamburger 23). While the first lies in that of the level of principle, the second forms that of integrity. It is important to note that, as Hamburger does at the outset of the book, his critique is at the level of legitimacy. Hence, he is not necessarily interested in putting forth a critique of political economy or regulatory reform, which would entail an acceptance of the administrative state one way or another.

Let us take the first premise, which assumes that the administrative state brings about a new absolutism. Hamburger establishes a comparison with King James’s absolute monarchy, which represented a model of constant prerogatives and forms of adjudication to agency discretion, in permanent conflict with legislative decision-making, and interpretative authority of judges. For Hamburger this all takes place in the present, but the situation is much worse, since the administrative state seems to have achieved King James’ absolutist intention. For instance, Hamburger writes: “the lawmaking interpretation that James desired for his prerogative bodies has become a reality for American administrative agencies. Federal judges’ show varying degrees of deference to agency interpretations, and the agencies therefore can use their interpretation to create law” (Hamburger 9). Ultimately, this means that administrative agencies have come to inhabit a sort of juridical monad that can interpret, execute, and legislate its statutory norms and facts in clear violation of the principle of the separation of powers.

Hamburger observes the watershed 1984 decision Chevron vs. National Resources Defense Council, in which Burger Court decided that every time there are statutory ambiguities, judges must defer to agency for clear interpretations, with horror. This does not mean that an agency will rule every time on the agency’s behalf, but it has come to establish what is known as the principle of ‘deference’ in a two-step model. Mainly, that if Congress does not express direct intent on the statute, the agency can uphold the interpretative prerogative for clarification of any ambiguous component. The deference principle to agencies not only violates the principle against subdelegation (the common law axiom delegata potestas non potest delegari), but more importantly for Hamburger it confuses the spheres of interpretation and execution in the hands administrative quasi-judges. The prefix hints at the fact that experts and technicians of different epistemological spheres now have entirely displaced the imperial pretensions of the independent judicial branch. At the same time, we know that there are no judges freed from inter-dependence, and that the very legal process is always politically binding [1]. This transformation does entail that the judiciary is noww marginalized to a thin discretionary position to arbiter reasonable goals.

Furthermore, it is not the case that the way deference is understood in American administrative law hinges on a principle of sub-delegated power. Adrian Vermeule has convincingly argued how the specification of statutes is conceived within the executive branch [2]. Hamburger insists, however, in that “administrative power resembles old absolutism” (Hamburger 14). Absolutism is defined as extra-legality, and as a fundamental and consistent evasion of law (sic). Curiously, Hamburger fails to explain in which way the expansion of the administrative state legality has moved the boundaries unto an extra-legal domain over time. The administrative state cannot amount to a new monarchism for the simple reason that there is no monarch who is deemed as the sovereign mediator capable of dispensing his potentia absoluta without retrains.

The administrative state is a process of self-rationalization towards judicial abdication to experts, abandoning the empire of courts towards reasonable decision-making. It is an enterprise to limit incongruousness and contingency. As we know, this is one of the trademarks of the modern legitimacy. In other words, the administrative state follows integrity, and not the arcanum of political theory. This is something Landis already had in mind in the 1930s [3]. If absolutism is grounded in a principle of contingency and theological nominalism, modern rationality and administration bends towards rationalization of law’s integrity [4]. In doing so, the administrative state is a highly sophisticated machine to regulate all possible risks. Here the question of a constitutionalism of risk within the expansion of the administrative delegation becomes relevant.

Hamburger, in a sense, seeks to revive the specter of Elizabethan judge Edward Coke, while ignoring that the becoming of the administrative state has pluralist aims, at odds with vertical decision protocols vested in the absolute sovereign [5]. The administrative state is a modern legal development, and any comparison to the English monarchy is a serious bend. From a historiographical standpoint, Hamburger’s premise is also ambiguous when he writes: “Early Americans, however, were familiar with English constitutional history, and they therefore were well aware of the danger from the absolute power and its extralegal paths” (Hamburger 19). It is not the case that there is a firm consensus about the patriot political beliefs about presidentialism or the British Monarchy. Eric Nelson in his landmark The Royalist Revolution (2014) has studied how republican patriots were comfortable with ideas of strong centralized executive power in fear of the British parliamentary form regarding commerce and taxation. And here one should ask to what extent the imperial presidency could also be justified on “originalist” grounds. But this is beside the point, since the legal development of administrative law is one thing, and the Atlantic political theory is another.

This takes us the second point regarding the separation of powers. The main problem with Hamburger’s account is that it fails to engage with Adrian Vermeule’s sound critique in Law’s abnegation (2016) of a certain political attachment to an idolatrous understanding of the separation of powers. Vermeule terms ‘idolatry of the separation of powers, in reference to a mechanic execution of the three branches (legislative, executive, and judicial). In this framework, anything that is excess to it is part of a narrative of betrayal. But it should not be so. This is what Landis called rather humorously the “attachment to the number three”:

“To condemn the administrative process simply because it is a fourth branch of government is not to consider what a branch implies. Four, five, and six branches of government may, of course, coexist without violating Montesquieu’s maxim, for the ultimate source and the ultimate division of power remains the same. It is the relations of the administrative state’s three departments of government that are important”  [6]

Needless to say, a mechanistic fixation to the tripartite separation of powers fails to account for the ways in which the administrative state is already an expression of specifically allocated knowledge, decisions, and state-national-agency conflicts over a long period of time.  The question that should be asked is not in which way the administrative state profanes a sacrosanct Madisonian separation of powers structure, but rather whether there are powers in separation that are legitimate within the classic design of contemporary government, which is what Vermeule brings to bear in his important book [7]. The fact that Hamburger is silent about the different arguments made on behalf of the administrative state’s legitimacy (Landis, Kagan, or Mashaw ), speaks about his originalist obliviousness to historical and legal evolutionary nature of the separation of powers. As a process of self-rationalization, the legitimacy of the administrative state is rooted in its immanent force against any transcendental arcanum. Hence, the way to test the status of legitimacy is not by probing on the grounds of the separated powers in 1789 or the seventeenth century, or in terms of what Madison or Montesquieu thought of them, but rather on how well those powers today can withhold actions within a frame of reasonable judgment regarding the material need of the res publica. The administrative state does not stand for a vicarious being, since its delegated powers are not ideal immovable concepts, but rational conditions for risk management of human action.

This leads me to the third and final premise of The Administrative Threat. Hamburger does have something to say about the current condition of citizenship, and it comes by way of the libertarian defense of civil rights. The idea here is that the administrative state trumps individual rights in the name of “public” rights, which Hamburger calls a “disgraceful assault on the Bill of Rights and the due process” (Hamburger 35). This argument is supplanted with a meditation on the historical valance between voting rights and the administrative state. Going as far as to the Wilson presidency, Hamburger shows that throughout the twentieth century, bureaucracies were at odds with the voting rights of disfranchised minorities. Of course, the implicit assertion here befalls on a defense of the courts, primarily the judicial activism of the Warren Court, which Bruce Ackerman, on the opposite side of the political spectrum has called the last legal revolution in American constitutional development [8]. This is even truer today in light of the Shelby County decision, and the rise of Kris Kobach or Jeff Sessions to national public office, both intellectually committed to voting suppression [9]. One could say that both Hamburger and Ackerman, albeit in very different ways, lament the dawn of the traditional judicial authority. But even if there were a one-direction movement between the expansion of rights and the rise of the administrative state, it seems illogical to defend a return of a court-centric model on the basis of past historical experiences.

If we are, indeed, at the end of the court-centric legal revolution model, are we to assume that the dismantling of the administrative state will restore its capacities? I am doubtful of the eschatological weight of such a proposal. And if voting rights is a concern for Philip Hamburger, why isn’t electoral reform an optimal option for democratic expansion? Of course, this would necessary entail something like a Federal Voting Commission, which would in turn require more of the administrative state. But we are in no position to think that if we were to imagine the end of the administrative state (even as a thought experiment), a new type of liberty would be distributed across the board.

Since today we are facing the end of the state form, any historical analogies with the past tremble on very weak grounds. Furthermore, we know that beyond the moment of casting a vote a ballot, a civil equality protection really amounts, as Anatole France used to say, to whether we chose to sleep in a park bench or under bridges. While might be true is that the administrative state is a neutralizer of political dynamics, to use the language of Carl Schmitt; it is in no way reasonable seek its destruction in the name of a libertarian ideal of freedom within an unequal social space. It is defeatist to turn to political theory in exchange for the integrity of administrative legality, as Hamburger seems to do here.

It is rather strange for a libertarian to end a book on a legitimacy crisis quoting Lenin. But there is another implicit paradox here on Hamburger’s part; mainly, that while Lenin offered a theory of state, we cannot say the same for Hamburger. The modern state was able to implement and model itself with commerce, but much harder is to image a state emerging from contemporary anarchic markets. Hamburger writes in a section sarcastically subtitled what is to be done?: “Lenin asked his fellow Russians, “What is to be done?”. Fortunately for Americans, the answer is not revolution but a traditional American defense of civil liberties. To this end, Americans will have to work through all three branches of government. Of course, none of the branches have thus far revealed much capacity to limit administrative power” (Hamburger 61). This is a self-defeating argument, since as Vermeule has argued quite convincingly, even if one could ‘magically’ undue the administrative state and return to the original institutional design of 1789, it will evolve into the administrative state. This is an argument centered on the integrity of the American legal development that Hamburger needs to ignore in order to render somewhat possible the return to the  idolatrous originalism of the separation of powers and principled judicial review. The other part of the ‘what is to be done’ plan resonates with a populist overtone: “Ultimately the defeat of administrative power will have to come from the people. Only their spirit of liberty moves Congress, inspires the president, and braces the judges…” (Hamburger 64).

But who are the People? Is We The People the progressive mobilizing force within a constitutional regime? Is the People here a spirit or idea for the return to the courts? It is difficult to say, mainly, because Hamburger himself has no idea either. I take this to be the impasse of libertarian and liberal thought facing the irreversibility of the administrative state. This explains why libertarians, at times, equate deregulation with lessening the administrative power. This impasse is, in effect, the same currently stamping Trump’s strange brand of populism, which has, on one end, the mission to ‘destroy the administrative state’, and on the other, the nationalist protectionist banner to cushion transnational market forces. For better or worse, neither of these two goals seems plausible together. At best, they represent a double-bind of the liberal impasse. Only in this sense, the administrative state is a temporary katechon [10].

The trumpist complexio oppositorum in the form of a schizophrenic symptom is showing, paradoxically, that the administrative state will only be reinforced through new checks and balances emerging from executive administrative inefficiency. We are now in conditions to reach a somewhat different conclusion from that of Hamburger’s: we are far from an absolutist monarchic regime, since the human cannot endure the absolutism of reality devoid of a sense of anticipation [11]. The principles of delegation and anticipation seem to be two components of the administrative state that have their legitimacy in modern self-rationalization. In the end, it might be Hamburger who, in validating an ostensible and yet dissolute world beyond administration, promises the humanity an archaic absolutism of an unbearable nature. However, no man can live in the absolute. But even if we are to image an alleged triumph of an original law under the supervision of a New Coke, this would require in the form of an eternal recurrence, the invention of the administrative state.

 

 

 

 

Notes

  1. See Braden, George D., “The Search for Objectivity in Constitutional Law”, Faculty Scholarship Series. 4031, 1948. However, for a contending non-political moral stand of the judicial process, see Alexander Bickel. “Constitutionalism and the Political Process”, in The Morality of Consent. New Haven: Yale University Press, 1975.
  2. See Vermeule’s argument on the lawfulness of administrative law on the principle of delegation through executive power in Law’s Abnegation (2016), 50-54 pp.
  3. Landis will write in The Administrative Process (1938): “A similar development with reference to the administrative seems more a matter of time than of political theory, of demonstration by the administrative that intervention of this character is futile and tends more to prejudice than to further a client’s cause”. 102-103 pp.
  4. Hans Blumenberg. Legitimacy of the Modern Age. MIT, 1985. 125-205 pp.
  5. Sunstein, Cass & Vermeule, Adrian. “The New Coke: On the Plural Aims of Administrative Law”. The Supreme Court Review, Number 1, Volume 2015.
  6. Landis, James M. The Administrative Process (1938). 88 pp.
  7. Vermeule Adrian, Law’s Abnegation: from law’s empire to the administrative state (Harvard U Press, 2016). 56-87 pp.
  8. Ackerman, Bruce. We The People III: The Civil Rights Revolution. Cambridge: Harvard University Press, 2014.
  9. Berman, Ari. “The Man Behind Trump’s Voter-Fraud Obsession”. New York Times, June 13, 2017. https://www.nytimes.com/2017/06/13/magazine/the-man-behind-trumps-voter-fraud-obsession.html
  10. On the administrative state as a counter-schmittian katechon, see my “The administrative state as a second Leviathan: a response to Giacommo Marramao”. Although I do not mean by any means that the administrative state is a universal katechon in the way that the Church and the early modern state were, but this I will try to develop somewhere. https://infrapolitica.wordpress.com/2017/05/25/the-administrative-state-as-second-leviathan-a-response-to-giacomo-marramao-by-gerardo-munoz/
  11. On the absolutism of reality and the anthropogenesis of anticipation as an intrinsic separation of powers, see Hans Blumenberg’s Work on Myth (MIT, 1985). 2-40 pp.

Illegitimacy? Review of Giorgio Agamben’s The Mystery of Evil: Benedict XVI and the End of Days. By Gerardo Muñoz.

agamben mystery 2017Giorgio Agamben’s Il mistero del male, now translated in English as The Mystery of Evil: Benedict XVI and the End of Days (Stanford U Press, 2017), is an intense repudiation of the mundane legitimacy of every institution, costume, and political structure hitherto existing on earth. For Agamben, the decline towards illegitimacy has not been a matter of a few years or decades, but part of a larger inherited drama. The core of the book reads Benedict XVI’s “great refusal” as an ‘exemplary act’ [sic] against the Church, bringing to awareness a vital “loss of substantial legitimacy” (Agamben 3). Overstating the dual structure characteristic to Western governmentality – potestas and autorictas, or economy and mystery, legality and legitimacy – Agamben asserts that Ratzinger’s gesture cuts through the very thicket of the ekklesia arcanum, reversing the mystery of faith in time to the point of abandoning the very vicarship of Christ (Agamben 5). Of course, this comes as no surprise to those that have engaged with his prior The Kingdom and the Glory (2011), where Agamben interprets the Trinity as a stasiological foundation of an oikonomia that plays out (vicariously) as a praxis without Being [1].

In many ways, this essay is supplemental to the larger turn already undertaken in The Kingdom, only that this time, Agamben brings to focus a seminal institution of the Western political tradition. Here Agamben seems to be pressing more heavily on the state of global affairs in which the Church is a metonymy: “…if this gesture interests us, this certainly is not solely insofar as it refers to a problem internal to the Church, but much more because it allows us to focus on a genuinely political theme, that of justice, which like legitimacy cannot be the eliminated from the praxis of our society” (Agamben 16-17). This is consistent with overall structure of The Kingdom, by which the structure of the oikonomia is understood vis-à-vis the true ‘providential machine’ of human administration. So every administrative structure is illegitimate, since for Agamben, it governs through de-substantial vicarious being. It is a true ‘kakokenodicy’ (referring to the emptying) that can only justify effective evil (Agamben 36). To the extent that Agamben’s overarching project seeks to establish a responsive unity to the problem of discessio or internal division, it is not difficult to grasp how Benedict XVI’s return to Tyconius’ obscure thesis of the Church composite of good and evil is highly relevant, as we shall see.

We are far from Augustine’s City of God, where the split was produced between two cities, allowing for what Erik Peterson understood, against Schmitt, as the impossibility of any political theology. Tyconius is, in a sort of way, the persistence of an Anti-Augustinian gnosis. Agamben’s effort, let’s be clear, tries to make Augustine a son of Tyconius, which makes it even more mysterious; since whereas Augustine separated Church and Empire, Tyconius separates evil and good in the temporal katechontic nature of the Church (Agamben 10-11). Agamben cites Illich’s testimony to claim that the Church is always already mysterium iniquitatis as corruption optima pessima (the worst possible corruption of the best). But once again, Agamben seems to be forcing positions, since whereas for Illich the Church, consistent with Augustine, allowed for ius refomandi (reform), Agamben posits discessio as the arche of the corporeal Church, in this way reintroducing the myth of political theology to stage the mysterical drama of History.

In a strange sense, the mystery is not that mysterious. It becomes messianic eschatology on reserve. According to Agamben’s narrative, the Church as a dual nature of opposites, possesses an internal stasis between a temporal restrainer (katechon), the evil that runs counter to against law’s integrity (anomos), and the eschatological dimension of the End. This last character points to the Pauline’ messianicity, which allows Agamben to link Benjamin and Tyconius’ in a common salvific structure. As he writes: “The mysterium iniquitatis…is a historical drama, which is underway in every instant, so to speak, and in which the destiny of humanity, the salvation or fall of human beings, is always at stake.” (Agamben 14). Benedict XVI is a counter-katechon, as he is able to reveal, in his exodus, the eschatological structure that leaves behind the vicarious economy. According to Agamben, Benedict XVI’s message was “nothing but the capacity to keep oneself connected to one’s own end” (Agamben 16).

On the reverse, this entails subscribing a messianic turning of life from within the Church in order to posit a metapolitical form without remainder. The renunciation of the katechon implies that we are left with an economy (oikonomia) devoid of legitimacy. The central problem here is that history itself has become mystery of the economy, instead of an economy of mystery, which is the Pauline arche. What compensates for this illegitimacy becomes messianic politics that “does not remain a mere idea, entirely inert and impotent in the face of law and economy, but succeeds in finding political expression in a force capable of counter-balancing the progressing leaving out onto a single technico-economic plane of the two coordinated but radically heterogeneous principles [legitimacy and legality] that constitutes the most preciouses patrimony of European culture” (Agamben 18).

But if the machine of governance of the West is dual, playing legitimacy and legality in a skirmish co-dependency, why does Agamben conflate the renewal of legitimacy to the coming of a new politics? The reason seems to be that once you accept the condition that what exhausts government is an economical structure of the Christian katechon, you can then accept as exodus a metapolitics of salvation. What is interesting is that this politics, seemingly against Schmitt, actually re-enacts the same movement for an exact, albeit reverse, political trade-off. Agamben does not follow Peterson here. Let us recall that Peterson’s argument was never that the Church is an oikonomia, but that Schmitt’s totalizing and unifying political theology applied not to the Church, but only to Empire. This principial politics, as we know, has always led to catastrophic dominance, from Rome to Christian Monarchy to Nazi Germany. Counter to Schmitt, Agamben wants to produce not an imperial katechon, but “a time of the end, [where] mystery and history correspond without remainder” (Agamben 30).

The problem becomes that in order to set the stage for such “drama”, Agamben needs to avoid at all costs the Augustinian/Petersonian split of the Church in its facticity (as it actually happened). This explains why, in the second essay, history is understood as mysterical. In this context, it is noteworthy that Peterson is fully absent, even though he famously authored the essay “The Church”. There he writes in an important passage:

“The worship the Church celebrates is public worship and not a celebration of the mysterious; it is an obligatory public work, a leitourgia, and not an initiation dependent on voluntary judgment. The public-legal character of Christian worship reflects the fact that the church stands much closer to political entities like kingdom and polis, rather than voluntary associations and unions” [2].

I highlight Peterson’s reference to the “the mysterious”, because this is an explicit polemical stance against Casel, the Benedictine monk that informs Agamben’s mysterical adventure in history. But this has important implications, only two of which I will register here. First, accepting Casel’s mysterical Church leads us to conclude that internal worldly illegitimacy requires that we embrace a messianic politics ‘again’ (Agamben 38). In fact, politics is ultimate salvation in Tyconius, Casal, and Benjamin.

Secondly, mysterical historicity demands voluntary filiation. Agamben lays this out in plain sight: “it is in this drama, always underway, that all are called to play their part without reservation and ambiguity” (Agamben 39). Messianism forces agonic politics, displacing administrative vicarship with a conceptual theodicy. But profane life does not need to coincide with or abdicate a metapolitics of salvation. Now, if this is so, perhaps the accusation raised against governmental structure as illegitimate is in itself not legitimate. What if instead of being on the side of the metapolitics of the eschatological mystery, legitimacy is nothing other than the internal rational enactment of the separation of the profane that is always taking place in the world?

 

 

Notes

  1. Agamben writes in The Kingdom and the Glory (2011): “And, more generally, the intra-Trinitarian relation between the Father and the Son can be considered to be the theological paradigm of every potestas vicaria, in which every act of the vicar is considered to be a manifestation of the will of the one who is represented by him. And yet, as we have seen, the an-archic character of the Son, who is not founded ontologically in the Father, is essential to the Trinitarian economy. That is, the Trinitarian economy is the expression of an anarchic power and being that circulates among the three persons according to an essentially vicarious paradigm… The mystery of being and of the deity coincides entirely with its “economical” mystery. There is no substance of power, but only an “economy,” only a “government.” 138-39 pp.
  2. Erik Peterson. “The Church”. Theological Tractates (Stanford U Press, 2011). 38 pp.

 

Legitimacy and the administrative state. By Gerardo Muñoz.

To follow up on my previous responses (that can be read here and here) in conversation with José Luis Villacañas’ lecture on Weber and populism, I want to return one more time to the question of legitimacy. I do not want to repeat what I have already said in the other commentaries, rather this time I want to specify the nexus between the administrative state and legitimacy. That is the purpose of this commentary, anticipating a more elaborate presentation of this problem in an upcoming conference at the University of Rome.

The heart of the problem can be laid out in a straightforward manner: is the administrative state legitimate? And if so, from where does the administrative state derive its legitimacy? For a moment I’ll leave aside the fact that for a wide range of legal scholarship, bureaucratic order itself is a material source of legitimation, in part because administration purports separation of the private/public spheres, and deters corruption, thus upholding the well-being of the social. But this answer is in itself tautological and needs of descriptive substance.

Here I find Adrian Vermeule’s typology of the legitimatization of the administrative state helpful and pertinent for a number of reasons. For one, it allows me to affirm my position in this debate [1]. As Vermeule fleshes out, the question of legitimacy of the administrative state is not new, and only recently – that is, the post-Reagan period, once the Federalist Society began having effective impact in the wake of the Neo-Conservative movement – has the legitimacy of the administrative state been challenged on the basis of it being inconsistent with the separation of powers (Epstein 2008, Hamburger 2014).

I cannot go into details about the reason of this development in the space of this commentary. Let me jump right into the analysis. Vermeule notes that the way in which the legitimacy of the administrative state has been posited – from the New Dealers of the 1930s to the current Supreme Court – takes different paths to understanding the core problem of “independence”. This is of no minor importance, since independence of the legislative deference and execution of an agency statute, has everything to do with what Moreiras and Villacañas understand as the reduction of the factual condition of domination. This is also a crucial premise as to move in the direction of a posthegemonic democracy, regardless of how it is defined and developed in each case.

Vermeule insists that “independence” has a heterogeneous form of legitimation of the administrative state in three main tracks (it does not mean that there are only three, but at least these have been highly influential): 1. the one posited by James Landis in Administrative Process (1938) who sought to provide independence of the administrative agency from the executive power; 2. Louis Jaffe’s formulaic deference of a strong position of independent judicial review of agencies; 3. Kagan’s inversion of Landis, who in the early 2001, interprets “independence” of the President against interests groups, or crony interest-restricted legislators. Regardless of the different premises and relational valences of these forms of administrative law, I agree with Vermeule that they affirm a common and perhaps dual legitimization value: to establish independence and internal legal pluralism.

There is good and bad news here for Republicanism. First, the bad news: the forms of legitimization of administrative law emerge in the wake of the crisis of the traditional Madisonian division of powers. However, the crisis of the archaic formulation should not produce neither horror nor nostalgia. In any case, this is an aspect that must be discussed after Villacañas’ own philosophical defense of the division of powers in genealogy of the Western tradition in his Teología Política Imperial (Trotta, 2006). As for the good news: the hermeneutics of administrative legitimation are affirmed on the ground of the equilibrium and an internal pluralism, which is how Vermeule establishes his stance against contemporary anti-administrative libertarians. This entails that the administrative state is not the abdication of the rule of law in a drift towards tyranny or unpopular rule, but rather part of an elastic historical development in a complex field of tensions [2].

Why is this important for thinking populism today? For one, because Villacañas’ Weberian position even when placed in the “factual grid” of the administrative state, perfectly convergences with Elena Kagan’s position (the third path of legitimation). In fact, Vermeule describes Kagan’s most important and enduring contribution in a way that we could also ascribe to Villacañas:

“A constitutional vision that attempt to combined two intellectual and constitutional strands that had often been assumed to be in tension with one another, or even outright contrition. The first strand was technical administration, whose major tool is quantified cost-benefit analysis; the second was Hamiltonian political leadership by an energetic elected President, who hallmark is accountability to a broad national public” (Vermeule 18).

This is precisely what Villacañas’ response to me meant regarding the potential dismissal (in Castilian: “la patatada en el culo”) of the charismatic leader when he fails to meet the material needs of the People. In effect, this is completely consistent with Weber’s defense of presidentialism in “The Reich President” (not really the same as “charismatic leadership”), as a form of the checking the bureaucracy in line with the Hamiltonian vision of the modern state [3]. So, here is the big picture: whereas Landis favored anti-Presidentialist stance during New Deal legislation, in the case of Kagan it is the figure of the President that can advance the needs of the People in any given circumstance. It is interestingly enough that President Obama (who was a constitutionalist) followed more the track of Landis and not that of Kagan.

It is clear why Kagan needs to embrace a thin margin of presidentialism as a process of legitimation, since to do so entails reducing the ascending problem of factionalism, narrow interests, bad administration, or even more recent problems such as big financial conglomerates (Vermeule 23). Here the contending debate between populism as charismatic leadership (Villacañas), and an anarchic populism (Moreiras) on the other is also properly defined. Whereas I agree with Kagan and Villacañas that presidentialism could buffer certain corporate interests (“la casta”, in Podemos is a perfect example) and the weight of agencies, I also agree with Moreiras that then this could only mean that the “President” is no longer a political figure, but rather a mere administrator, a gestor [4]. The President becomes the perfect justification of an Enlightened monarch (in a phrase revered by Peterson in his response against Schmitt’ political theology): the King rules but does not govern. But I would add, he does function as a filter for what Vermeule calls “accountability to a broad national public”, which is synonymous with what Villacañas calls the “material interests of the People”.

I end with a question to align a few problems for further investigation: if the President is a mere filter in a complex structure that is the political fabric of the administrative state today, isn’t he already a sort of de-centralized and an-archic figure? Also: can there be, for instance, a concrete moment of demand of the People if there are only administrative agencies? Only placed in this backdrop does posthegemonic populism becomes clear: neither effective administrative law without the expansion of the democratic demand, nor effective or defective presidentialism. After all, no threat of factionalism has been tamed from a secure position of leadership without, at the same time, necessarily bending towards the expansion of its own (imperial) hegemony, which always amounts to the phantasm of a corrupted legitimacy.

 

 

 

Notes

  1. Adrian Vermeule. “Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State”. Forthcoming, Harvard Law Review, 2017.
  1. For Adrian Vermeule, the crisis of legitimacy is actually is greatest strength. See, “What Legitimacy Crisis?” CATO UNBOUND (May 9, 2016). https://www.- cato-unbound.org/2016/05/09/adrian-vermeule/what-legitimacy-crisis
  1. Max Weber presents in “The Reich President” (Social Research, 1987) a defense of presidentialism that is the principle to both Villacañas and Kagan: “For the great movement of democratic party life which develops alongside these popular elections will benefit parliament as well. A president elected by means of particular constellations and coalitions of parties is politically a dead man when these constellations shift. A popularly elected president as head of the executive, head of office patronage, and perhaps possessor of a delaying veto and of the authority to dissolve parliament and to call referenda, is the guarantor of true democracy, which means not feeble surrender to cliques but subjection to leaders chosen by the people them.” 132 pp.
  1. Alberto Moreiras: “Este es por lo tanto un populismo sin líderes (o sin líderes en función hegemónica), es decir, un populismo en el que la posición de líder—el notorio “significante vacío”—está ocupada por el gestor de la radicalidad democrática, y solo por él o ella en cada caso, a cualquier nivel administrativo (seguir llamando a ese “gestor de la radicalidad democrática” líder, o jefe, o caudillo, sería un capricho arbitrario).”. “La hipótesis Podemos”. https://infrapolitica.wordpress.com/2017/04/09/la-hipotesis-podemos-borrador-por-alberto-moreiras/

Una nota a la pregunta a José Luis Villacañas. Por Gerardo Muñoz.

El intercambio con Villacañas y Moreiras ha sido iluminador, en parte, porque como decía un amigo por comunicación privada estas notas ayudan a delinear posiciones. Yo no quiero disputar ninguna parte de los argumentos, y lo que sigue es tan solo un apunte mental hecho público sobre lo que me parece que es una posición de desacuerdo y que pudiera ser tema de futuros debates. Aunque el punto del desacuerdo tampoco es tan nuevo.

Me refiero, desde luego, a lo que Villacañas llama la necesidad de legitimidad en su réplica a Moreiras. En específico, J.L.V escribe: “El republicanismo no necesita de la hegemonía, pero si necesita de la legitimidad. Y el problema es que la legitimidad no es una afirmación de archē” [1]. Pero, ¿por qué no puede la legitimidad ser jamás una afirmación arcaica? Es sabido que Weber en Economía y Sociedad habla del necesario arcano de la dominación, pero solo como trazo transitorio hacia una función moderna de los tres tipos de apelación a la legitimación racional (la tipología tripartita: racionalización, autoridad personal, y carisma) [2].

Pero lo que Villacañas entiende por legitimidad tiene sus propios tintes, y ya ha quedado muy bien esbozado en su importante ensayo “Poshegemonía de Gramsci a Weber”. Allí, J.LV. pide el abandono de la hegemonía gramsciana en nombre de una noción de legitimidad en función de una institución visible [sic], capaz de renovación en cada instancia, y garante del pacto social [3]. Y es cierto que esto no tiene nada que ver con un principio legislativo supremo o metafísico, tal y como lo comenta Schürmann en el apartado sobre la legitimidad y la legalidad en la primera parte de Broken Hegemonies.

Ahora bien, en la medida en que la legitimidad no tiene arcano, habría que preguntarse si en el momento de la expansión del estado administrativo – que pienso que es consistente con lo que Moreiras llama la ruina del orden categorial moderno de lo político, o lo que Williams llama decontainment – no hace de la legitimidad algo defectuoso. Pero defectuoso ya no como ‘equilibrio’ de movilización e instalación propiamente político, sino defectuoso en el sentido de un vacío o abismo efectivo. De ser así: ¿cómo pensar aquí la legitimidad caída hacia la pura administración?

Si se apela a la “legitimidad” se apelaría solo al concepto. Por eso la cuestión medular es si la legitimidad tiene gancho compensatorio, o es todo lo contrario. En su librito sobre Benedicto XVI, Il mistero del male (2013), Agamben ha declarado que no existe estructura de gobierno legítima hoy en la tierra. Y quizás Villacañas diría que esta conclusión se debe a su prole schmittiana que desde el registro del mito deja intactas “muchas realidades históricas operando”. Y es verdad que tiene razón.

Y con esto concluyo: lo que si es importante derivar de esto es que si ya la legitimidad no es compensatoria para un momento democratizante, lo que prosigue a la hegemonía es la poshegemonía en la medida en que, en cuanto a su segundo registro infrapolítico, abandona ya la ratio última de la política como acceso de mundo y de vida. La biopolitica ha sido el último avatar de esta posición. Si el populismo contemporáneo – la mejor posibilidad populista, digamos Bernie Sanders, digamos ciertos grupos a escala estatal batallando contra los intentos revocatorios del Civil Rights Act en el sur estadounidense, el errejonismo – tiende hacia a la apelación a la legitimidad o a la poshegemonía es ya otro asunto. Pero yo no tengo dudas que esta es la verdadera bifurcación en nuestro momento para el pensamiento.

 

 

Notas.

  1. Ver en este mismo espacio, a José Luis Villacañas. “Réplicas”. https://infrapolitica.wordpress.com/2017/04/12/replicas-por-jose-luis-villacanas/
  1. Max Weber. Economy and Society. University of California Press, 1978. P.953-54.
  1. José Luis Villacañas. “Poshegemonía: De Gramsci a Weber”, en Poshegemonía: el final de un paradigma de la filosofía política en América Latina (Biblioteca Nueva, 2015). P.165-66.