Understanding the administrative state

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Power Line:

Scott Johnson

Feb. 27 2017

 

For the 20-plus years my friend Bruce Sanborn was chairman of the Claremont Institute, we attended the annual meeting of the America Political Science Association over Labor Day weekend. At the APSA convention we attended the panels sponsored by the Claremont Institute. In those panels I heard a lot about “the administrative state,” frequently from Professor John Marini. Professor Marini had written about it in The Politics of Budget Control in 1992 and continued to deepen his understanding of the subject over the years. It took me a long time to understand the reference. Now it has become a thing thanks to the ascendance of Steve Bannon to his perch in the White House and his comments at CPAC last week, discussed by Paul in the adjacent post.

 

You may have heard that our own Steven Hayward has a new book that is available now on Amazon. I read the book in galley and think it is the best book I have read since Philip Hamburger’s Is Administrative Law Unlawful? of 2014. Steve is a gifted teacher and a born storyteller, qualities that are prominently on display in his new book. The themes of Steve’s book culminate in his account of “the administrative state” (coincidentally, the subject illuminated by Hamburger’s book).

 

Steve’s book presents a lucid account of the development of the most important strand of contemporary American conservatism. It a brilliant and invaluable book. The story Steve tells culminates in his account of the administrative state as presented in the work of certain students of Leo Strauss and Harry Jaffa in chapter 9. The new issue of Claremont Review of Books adapts Steve’s chapter 9 on “The Administrative State and the End of Constitutional Government” into an essay under the heading “The threat to liberty” that the CRB has placed online at our request. By all means buy and read Steve’s book. If you read nothing else about the administrative state, read Steve’s essay adapted from the book.

 

Studying administrative law in law school, I don’t think we read anything that raised questions about the legitimacy of the agencies giving rise to to it. We took it as a given and picked up the story with the passage of the Administrative Procedure Act in 1946. We should have taken a look at the question of legitimacy in constitutional law, and probably did, though the standard New Deal account I would have received is extremely misleading.

 

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How the Administrative State Threatens Our Liberty: VIP Live, With Howard Root
John Hinderaker
March 1, 2017

The administrative state is the #1 threat to our freedom, a fact which no one knows better than our friend Howard Root. Howard was the founder and CEO of Vascular Solutions, Inc., a successful medical products company that was set up as a victim by Barack Obama’s hyper-politicized Department of Justice. For five years, Obama’s DOJ persecuted and harassed Howard and his company with bogus claims. Thankfully, Howard Root had both the financial resources and, more important, the courage–he was facing prison time–to stand up to the DOJ’s bullies.

 

Ultimately, a jury acquitted Howard and Vascular Solutions on all charges. One of the jurors wrote Howard to say that what the government tried to do to him was a disgrace. Still, Howard had to leave the medical products industry, as he knew that he could continue to be a target of vengeful prosecutors, to the detriment of the company that he had led since its founding. Last month, he sold Vascular Solutions.

 

Howard has written a book about his ordeal called Cardiac Arrest: Five Heart-Stopping Years as a CEO On the Feds’ Hit-List. The book is sensational, not just readable but gripping, even though it deals largely with legal proceedings. Trust me: if you read Cardiac Arrest to the end, you will be on your feet, cheering for Howard Root. Howard also authored a recent Wall Street Journal column about his persecution by the federal government.

 

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May 9, 2016

 

Vascular Solutions CEO Howard Root faced years of jail time in a legal battle over off-label use that has profound implications for medical innovation in America.

Howard Root is the CEO and founder of the medical device company Vascular Solutions, which develops life-saving medical technologies, such as freeze-dried blood plasma to help wounded soldiers on the battlefield and catheters that make heart surgery safer and easier for doctors.

 

But five years ago the Food and Drug Administration filed a criminal lawsuit against Vascular Solutions that might have sent Root to prison for 4 years, while tearing apart the company he’s spent decades building. Why? Because of a petty bureaucratic dispute over whether Vascular Solutions encouraged doctors to use one of its devices in a way that helped patients, but that the FDA had refused to sanction.

 

Ultimately the company prevailed, but Vascular Solutions’s 5-year, $25 million nightmare has profound implications for the future of medicine in America.