Ezra Klein has an interesting interview today with law professor Nicholas Bagley. If Bagley’s name sounds vaguely familiar that’s probably because he was a frequently cited source on the topic of Obamacare a decade or so ago, a program he supported.

Bagley recently made an argument in a law journal that progressives hoping to see more progress out of the government ought to think about putting fewer procedural restrictions on what he calls “the administrative state.” That’s not the same thing as the “deep state” though it is similar in some ways. Here’s his description of what he means by the administrative state.

The administrative state — the administrative state is the apparatus that government uses to achieve its ends. It’s the tool through which we govern. And as a practical matter, what that means is the assortment of agencies and departments and commissions that Congress has established, the state legislatures have established, to carry out its public mission.

For example:

Environmental regulation is top of the list, right? We have strong views about whether we ought to be protecting the environment or favoring economic development, but the fact of the matter is that a lot of the nitty-gritty decisions about how stringently to regulate new sources of pollution or how strictly to regulate discharges into waters — those choices are often made not by Congress or by state legislatures in the first instance, but by bureaucrats on the ground, usually informed by a lot of scientific expertise and background, trying to weigh a whole host of different factors to come to a decision that achieves all of our sometimes conflicting goals.

Conservatives have been referring to “the deep state” for years now, always with a negative connotation. But exactly what was meant by that could vary from some kind of conspiracy theory about people operating in secret to something more descriptive meaning, basically, the unaccountable (often progressive) bureaucrats who actually make a lot of the decisions. And if you limit the concept of the deep state to that latter description then it’s not so different from what Bagley means by the administrative state.

The gist of his argument is that it’s not surprising that conservatives often use layers of procedure to slow down what the administrative state can do. So why aren’t progressives more willing to take the opposite position and try to unleash the administrative state by removing all those procedures and safeguards?

Well, look. I mean, it makes a ton of sense for a political conservative to be pretty suspicious of the exercise of state power and to raise concerns about red tape, to raise concerns about overregulation, about the possibility that regulators are going to stymie free enterprise. All of that makes a certain kind of sense.

And the response on the right has tended to be, look, what we need to do is add more procedural rules to make it harder and harder for agencies to act without due care for a variety of private interests. And as you layer procedure on procedure, part of the goal is to get agencies either to water down what they’re doing or just to give up before they even start trying.

On the left, you might have thought that — seeing the way that procedures are deployed to frustrate government — you might have thought that the left would see that and say, well, gosh, if procedures are so obviously attractive from the perspective of slowing government down, making it dysfunctional, maybe we should be cautious about trying to achieve good outcomes by layering procedures on top of agencies. Maybe we should be rethinking some of the procedures that we put in place so that agencies can actually, I don’t know, maybe do the kinds of things that the public demands of them.

He offers an example of how conservatives slow down the administrative state that comes from the Reagan administration:

Klein: Tell me about the Reagan administration’s executive order that required a cost-benefit analysis for every major agency rule…

Bagley: So in practice, OIRA — the Office of Information and Regulatory Affairs — as it was used under the Reagan administration, became a device for thwarting pretty much any regulation, whether it had positive benefits or not. And the reason for that is you created a bottleneck. You made every single rule pass through a particular office, where there was only a couple of dozen reviewers who could actually dig into the details. And so these rules would get up to the office, and they’d just sit on people’s desks for months, for years, sometimes purposefully, just never actually coming to see the light of day.

Later on, Bagley does admit that because government has extraordinary powers it’s wise to keep it under extraordinary control.

Obviously, government wields extraordinary powers — not only the power of the purse, but the power over the ability to condemn your property, the power to put you in jail for violation of its rules. And those kinds of powers are not the sorts of things that private corporations tend to wield. And we want to be a little bit cautious before giving too long a leash to government agencies to do whatever they think, in their infinite wisdom, is best.

But from Bagley’s point of view, the pendulum has swung too far in the direction of not trusting the government. He’d like to see more trust and consequently more power handed to the administrative state. He wants a return to the era of FDR when government bureaucrats were “progressive heroes.”

All of this leads to an interesting discussion in the second half of the interview about the left’s lawyer problem. Basically, most lawyers lean left and many left-leaning people who want to get involved in politics see law school as a path. It’s what you do if you’re young, progressive, ambitious and want to change the world.

But as Bagley sees it, that creates a progressive culture that is suffused with legalism and a desire for carefully crafted procedure. In fact he says there’s a view that it’s only the lawyerly procedures which make the administrative state legitimate. Contradicting that idea, Bagley writes, “Legitimacy is not solely, not even primarily, a product of the procedures that agencies follow. Legitimacy arises, more generally, from the perception that government is capable, informed, prompt, responsive and fair.”

I’ll admit that as a conservative that sounds exceedingly dangerous to me. I don’t want to stand in line forever at the DMV but I also can’t imagine giving control over the entire system of ‘who gets to drive’ to bureaucrats empowered to decide what’s fair. What if someone is having a bad day. What if you get a bad person in charge? Better to deal with a petty tyrant with severely limited power than a petty tyrant with unrestricted power.

There’s more to this story which I might come back to tomorrow. It has to deal with where the actual hang ups are happening in our present system and it’s not, it turns out, coming solely or even primarily from conservative activists.