The continuing, destructive power of libertarianism

At a recent conference on conservative philosophy, I told another professor that I’d just written a critical history of libertarianism. “You’re too late,” he said. “After Trump, libertarianism is dead in American politics.” 

Would that it were so. The Libertarian Party is indeed in deep trouble, torn apart by factionalism. Despite the increasing ubiquity of communitarian, nationalist rhetoric, however, libertarianism has a firm grip — on the Republican Party. 

It remains committed to the notion that crippling state capacity will make us freer. Its rhetoric has become more populist. But when Republicans retake power – and they are likely to get at least a share of it in the next election – the campaign for small and weak government will begin anew (with a carveout for abortion, where they aim to take control over women’s reproductive lives). Thus the urgency of understanding the deep flaws of modern libertarian political philosophy.

Consider three data points: the record of the Trump administration, the plans that Republicans have made going into the midterm elections and the Supreme Court’s attack on the modern administrative state.

Former President Trump doesn’t look particularly libertarian. He abandoned free trade. And liberty is not obviously advanced by shoving peaceful protestors into unmarked vans. Yet Trump’s biggest accomplishments were enormous tax cuts for the rich and the evisceration of regulatory agencies. His other thwarted aspiration was even more tax cuts, paid for by taking health care away from more than 20 million people. Not so populist.

If Republicans retake the House, they have said that their first priority is making the Trump tax cuts permanent. Of course, that will have to be paid for somehow. Their strategy will be the old trick of debt ceiling blackmail to force cuts to Social Security and Medicare. British Prime Minister Liz Truss might as well be the new majority leader, since they are pursuing her now-abandoned program.

And then there’s the Supreme Court. It purports to interpret the Constitution, but its decisions bespeak nostalgia for the old Articles of Confederation. The reason we abandoned the Articles was that the federal government was too weak to address the nation’s problems. Yet the Court, too, has adopted a presumption that the bigger the problem, the less power Congress can give an agency to deal with it.

The judges are determined to enfeeble the administrative state, claiming that they are merely enforcing the Constitution’s limits on Congress’s authority to delegate decisions to agencies. But let’s look at what the Constitution actually says. 

The list of congressional powers in Article I ends with an authorization to “make all Laws which shall be necessary and proper” to carry out its responsibilities. The interpretation of that power was settled in 1819 by Chief Justice John Marshall in McCulloch v. Maryland. Opponents of congressional power claimed that Congress was authorized only to choose means that were necessary to carry out those powers.  

Marshall responded that this interpretation would make the government “incompetent to its great objects.” One should not adopt a reading that would make the government’s operations “hazardous, difficult, and expensive.” Congress could choose any convenient means for carrying out its enumerated powers. The Constitution gave Congress “that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people.”

Faced with modern problems such as workplace hazards and pollution, Congress decided, decades ago, that the most effective response is to create agencies and give them broad authority to protect Americans. Yet now, after 200 years of deference to Congress, the Court seems determined to cripple those agencies. In its last term, it declared that, even though the Occupational Safety and Health Administration (OSHA) is specifically empowered to keep workplaces safe, it could not protect workers from COVID-19 by requiring that those in their workplaces be vaccinated.

Carbon emissions are an exceedingly dangerous form of air pollution, threatening to make large parts of the planet uninhabitable. Yet the Court held that the Environmental Protection Agency (EPA) could not act to limit them. In the coming term, it is poised to likewise hamstring the government’s capacity to guarantee clean water. Its reasoning is consistently terrible, ignoring both McCulloch and the language of the statutes it purports to be interpreting. The Court’s imagined Constitution is one that protects plague and poison.

Judges would not behave in this lawless and destructive way unless they were spellbound by a vision of weak government as the path to freedom.

Bad philosophy makes it impossible for Congress and the Court to do their jobs. The only cure for this is to confront the arguments for libertarian philosophy and see whether it really is a recipe for freedom. It isn’t. It has generated a weird coalition between idealists in the grip of a delusion and businesspeople who want to hurt the public without being bothered by the police.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman.