This week, we witnessed yet another government shutdown. For Democrats, Republicans, and virtually all in between, the scenes on the floor of the House and the Senate provide the latest evidence of the dangerous incompetence of our elected government. Some have said that this legislative ineptitude is the greatest threat our country faces, trumping even national security concerns.
The greatest threat to the freedom of everyday Americans, however, does not come from Congress. Neither does it come from abroad—an ascendant China or a flood of immigrants—or even from an erratic president. It is an insidious internal force that drains our democracy of meaning and destroys our political institutions, even as it entrenches the power of a cadre of political elites and cheapens the tremendous progress our nation has made toward universal suffrage. It is the administrative state.
The administrative state—the complex arrangement of agencies, sub-agencies, and independent commissions that comprise the executive branch of our government—dangerously consolidates government power in the hands of an unelected, unaccountable, and unrepresentative educated elite, marginalizing our constitutional government in the process.
As any high-school civics teacher will tell you, the executive branch is tasked with the execution of federal law, meaning that the executive branch, with a few particular exceptions described in the Constitution, may not act without an explicit directive from the people’s representatives in Congress: a bill. The object of separating the executive and legislative powers in this way was to protect the people from tyranny. By keeping “the purse and the sword” separate, a demagogue elevated to the presidency could not enforce his arbitrary will upon the people without the support of their representatives in Congress, or vice versa.
The administrative state entirely, deliberately, and dangerously undermines this careful design. For the most part, each of the more than 250 departments, agencies, and sub-agencies may issue rules with the binding force of law, launch investigations into violations of those rules, judge whether their own investigations have discovered violations of the aforementioned rules, and penalize members of the public for those violations—all without the interposition of a federal judge, a specific mandate from Congress, or the due process guaranteed by the U.S. Constitution. Taken together, these powerful fiefdoms, from the Environmental Protection Agency to the Federal Communications Commission, control virtually every aspect of American life.
Even as these administrative agencies routinely serve as judge, jury, and executioner for members of the public, they are unelected, unrepresentative, and unaccountable. More than 98 percent of federal civilian employees are unelected; instead, they are chosen through the civil service process, which insulates them even from indirect electoral accountability with generous tenure guarantees, regular salary increases, and near-complete protection from termination. Compared to a typical member of the public, the average federal employee is better paid, better educated, and far less likely to be a woman or a person of color. Tellingly, the advocates of the administrative state long have regarded these features to be its principal benefit; to avoid giving the “rigidly unphilosophical” public a hand in its own governance, Woodrow Wilson advocated handing “large powers and unhampered discretion” to unelected administrators instead.1
Worse, Congress and the courts have bowed to the administrative state. The courts steadfastly refuse to defend Americans dragged before partial administrative law judges and tyrannical federal commissions, on the grounds that the administrative state is simply too large and too essential to modern life to subject to meaningful limits. Meanwhile, individual congressmen, long content to surrender difficult decisions to a faceless bureaucracy and thereby minimize scrutiny from voters, have renounced almost entirely their role in policymaking. While Congress quibbles over three weeks of government funding, agencies issue thousands of pages of regulations, conduct countless adjudicatory proceedings, and pile more demands upon the American people than they could read in an entire lifetime. Only the largest corporations can afford to keep up; in fact, they often help agencies draft their rules, trading their compliance for regulations that destroy their competitors.2
The rise of such unchecked power ought to concern all Americans, regardless of their political orientation. As more power accrues to unelected career bureaucrats, our democracy loses its meaning. Why vote at all when our legislators have only a marginal effect on government policy—when even dramatic shifts in the partisan composition of Congress yields little to no change for voters? Surrendering our responsibility to govern to the well-born and well-educated members of the administrative state will weaken and ultimately extinguish our capacity to rule ourselves. As Philip Hamburger has explained, administrative power “accustoms an otherwise self-governing people to a regime of potentially pervasive control, and it thereby gradually deprives them of their capacity for self-rule.”
One of the greatest blessings of modern times is the institution of regular, constitutional government for so many nations of the world. What a shame it would be for the United States, so long a shining beacon of political freedom, to surrender its liberties to the “experts” and know-betters, rather than letting every man cast his vote, and having it matter.
Footnotes
1 The White House, Performance and Management: Improving the Federal Workforce (Budget FY 2015) (The White House, March 10, 2014), 72–77, https://www.gpo.gov/fdsys/pkg/BUDGET-2015-PER/pdf/BUDGET-2015-PER-4-4.pdf (for data on education and compensation of the federal workforce relative to the private labor force); Kenneth John Meier, “Representative Bureaucracy: An Empirical Analysis,” The American Political Science Review 69, no. 2 (1975): 526–542; V. Subramaniam, “Representative Bureaucracy: A Reassessment,” The American Political Science Review 61, no. 4 (1967): 1010–1019. Amy E. Smith and Karen R. Monaghan, “Some Ceilings Have More Cracks: Representative Bureaucracy in Federal Regulatory Agencies,” American Review of Public Administration 43, no. 1 (September 15, 2011): 65 (for underrepresentation of women in agency leadership roles); Norma M. Riccucci, “The Pursuit of Social Equity in the Federal Government: A Road Less Traveled?,” Public Administration Review 69, no. 3 (2009): 379 (for underrepresentation of women and minorities in high-paying agency roles); Ronald N. Johnson and Gary D. Libecap, The Federal Civil Service System and the Problem of Bureaucracy (Chicago: University of Chicago Press, 1994), 4–5, 7, 169 (on mode of appointment, various protections for federal civilian employees); Thomas A. DiPrete, The Bureaucratic Labor Market: The Case of the Federal Civil Service (New York: Springer Science & Business Media, 2013), vi (for proportion of civilian employees under the civil service system); Angie Drobnic Holan, “Firing Federal Workers Is Difficult,” PolitiFact, accessed January 21, 2018, http://www.politifact.com/truth-o-meter/article/2007/sep/05/mcain-federal/; Woodrow Wilson, “The Study of Administration,” Political Science Quarterly 2, no. 2 (1887): 212–6.
2 Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State (Cambridge: Harvard University Press, 2016) (for a thorough discussion of judicial deference to the administrative state); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People through Delegation (New Haven: Yale University Press, 2008) (for a discussion of congressional deference to the administrative state); Philip Hamburger, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014), 509.
Photo: Pierre-Selim (flickr)