There are three important tenets of American constitutionalism:
1) The first is the principle of non-delegation. If the separation of powers means anything at all, it means that one branch of government may not permit its powers to be exercised substantially by another branch.
2) The second tenet is a corollary of the first: There may be no combination of functions or powers within a single branch. In other words, the legislative branch must stick to legislation; the executive branch must execute and enforce the legislation; and the judicial branch must judge the legislation and executive functions in light of the Constitution. There is to be no overlap in these functions.
3) The third tenet of the separation of powers is the responsibility of administration to the republican executive. The government remains "wholly popular," in the words of Federalist 14, because those who carry out the law (administrators, under the traditional meaning of the term) are directly answerable to the President, who is elected.
United States government is today inundated with a plethora of agencies that operate independently of the executive and congressional powers that created them. This large group of agencies is quite rightly called the fourth branch of government. In addition to its being part of the government, in the first place, the whole batch of agencies realistically controls more government decisions and enforcement than the conventional branches of government, e.g., the Executive, the Congress, and the Judiciary.
This gang of agencies, the EPA (Environmental Protection Agency), the FTC (the Federal Trade Commission), the SEC (the Securities and Exchange Commission), and hundreds more have their origins in political thought that arose in the late 19th Century under the impetus of leaders such as Woodrow Wilson and Frank Goodnow.
Wilson, Goodnow, and others were reacting to the spoils system of appointing unqualified friends to government jobs, which had been going on since the 1820’s and the administration of Andrew Jackson.
Those leaders saw the Federal Government inundated with tasks that needed to be done (or…that the government desired to have done) and which were overburdening the elected officials of the government with administrative tasks. They also saw that many of these multiple tasks needed expert advice and management at the top of the bureaucracy. They believed the complexity of government mandated the creation of agencies headed by enlightened and well-motivated bureaucrats. They longed for a day when multiple government agencies would rule the nation through intelligent, thoughtful, benevolent, public-minded experts. They thought that agencies with leaders like that could rule the country better than it was being ruled along Constitutional lines. The ideas and organization of American Progressives were launched.
These ideas percolated through political minds for several decades. President Wilson used much of this new theory of government to manage his great task of motivating the U.S. population to fight World War II. During that war, President Wilson grabbed power at will. He set aside many Constitutional rights and privileges from the people. In fact, he acted much like an emperor or king in putting his ideas through. He was extremely successful; Americans fought and 50,000 of them died sub serving the policies of President Wilson and, it must be admitted, the American people.
As a practical matter, however, the modern manifestation of Wilson and Goodnow’s ideas came with Franklin Roosevelt's New Deal, which launched a large bureaucracy and empowered it with broad governing authority. Also, as a practical matter, the agencies comprising the bureaucracy reside within the executive branch of our national government, however, their powers transcend the traditional boundaries of executive power to include legislative, judicial, and even enforcement functions. These powers are often exercised in a manner that is independent of presidential control and altogether independent of political forces.
Goodnow explained that this conception of administration was novel, considering as it did the sphere of administration to lie outside the sphere of constitutional law; indeed, this new conception is exactly what Wilson had given Goodnow credit for in 1894. He knew, as Wilson did, that such a concept was a novelty in the American political tradition. Modern administrative law, therefore, would take it for granted that the political branches of government had to cede significant discretion to administrative agencies.
In making his case for freeing administration from political influence, Goodnow did not speak of a strict or rigid separation between politics and administration; indeed, he noted that the boundary between the two is difficult to define and that there would inevitably be overlap. But this overlap seems to be in one direction only, in a manner that enlarges the orbit of administration; that is, Goodnow seemed to contemplate instances where administrative organs would exercise political functions but apparently did not contemplate instances of political organs engaging in administrative activity. He characterized the function of politics as "expressing" the will of the state, while the function of administration is to "execute" the will of the state; but he made clear that the overlap between politics and administration would come in the form of administrative agencies taking a share in "expressing" and well as "executing" state will:
The key to trusting administrators with the kind of discretion that Goodnow envisioned was his profound faith in the expertness and objectivity of the administrative class, just as it had been for Wilson. Administrators could be freed from political control because they were "neutral." Their salary and tenure would take care of any self-interested inclinations that might corrupt their decision making, liberating them to focus solely on truth and the good of the public as a whole.
For Goodnow, it is the connection to electoral politics that makes administrators corrupt, while the absence of accountability to the electorate somehow makes them pure. Politics, Goodnow explained, is "polluted" and full of "bias," whereas administration is all about the "truth."
Conclusion: The Legacy of Progressivism
A glance at the primary features of the modern state shows continuities between it and the main principles of Progressivism. In particular, the constitutional separation-of-powers structure that was designed to preserve individual rights and uphold the rule of law has been considerably weakened, and we can see the effects of Progressivism on the three key tenets of the separation of powers that were described at the outset of this essay. In essence, the separation of powers has been junked by Progressive ideas and the administrative branch.
The Supreme Court ceased applying the non-delegation principle after 1935 and allowed to stand a whole body of statutes that enact the new vision of administrative power. These statutes, to varying degrees, lay out Congress's broad policy aims in vague and undefined terms and delegate to administrative agencies the task of coming up with specific rules and regulations to give them real meaning. The executive agencies, in other words, are no longer confined to carrying out specific rules enacted by Congress, but are often left to themselves to determine the rules before seeing to their enforcement.
For example, securities legislation giving the SEC the power to proscribe the use of "any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." The agency, on the basis of its expertise, and not Congress, on the basis of its electoral connection, is charged with determining the specific policy that best serves the "public interest." In another example, legislation on broadcast licenses directs that the Federal Communications Commission (FCC) shall grant licenses "if public convenience, interest, or necessity will be served thereby."
More recently, the Supreme Court under William Rehnquist made clear that there would be no revisiting the abandonment of non-delegation. In the case of Mistretta v. United States, the Court upheld the statute that delegated to the U.S. Sentencing Commission the power to set sentences (or sentencing guidelines) for most federal crimes. If any case were going to constitute grounds for non-delegation review, it would have been this one. Congress created the Sentencing Commission as, essentially, a temporary legislature with no purpose other than to establish criminal penalties and then to go out of existence. But Mistretta simply served as confirmation that the federal courts were not going to bring the legitimacy of the administrative state into question by resurrecting the separation of powers.
Progressive liberalism has also succeeded, at least partly, in defeating the third tenet of the separation-of-powers framework by weakening the political accountability of administrators in the agencies and shielding a large subset of agencies from most political controls. Federal courts have recognized the power of Congress to create agencies that are presumably part of the executive (where else, constitutionally, could they be?) but are nonetheless shielded from direct presidential control. Normally, this shielding is accomplished by limiting the President's freedom to remove agency personnel. In Humphrey's Executor v. United States, however, the Supreme Court overturned the President's removal of an FTC commissioner by reasoning that the Commission was more legislative and judicial than it was executive. More recently, it upheld the Independent Counsel provisions of the Ethics in Government Act, concluding that even an office as obviously executive in nature as a prosecutor could be shielded from presidential control.
These rulings reflect the acceptance of a key tenet of the modern administrative state: that many areas of administration are based upon expertise and neutral principles and must therefore be freed from the influence of politics. That such a notion has become ingrained in the American political mindset was evidenced by the near universal outrage expressed over the Supreme Court's 2000 decision in FDA v. Brown and Williamson. In this surprising exception to its standard deference for agencies, the Court ruled that before the Food and Drug Administration (FDA) could promulgate and enforce regulations on tobacco, Congress first had to pass a law actually giving the agency the authority to do so. The decision, which simply upheld the rule of law, was denounced because it would subject tobacco regulation to the control of the people's elected representatives in Congress, where tobacco-state legislators might derail it, instead of giving FDA scientists carte blanche to regulate in accord with their own expertise.
The acquiescence in the realms of law, politics, and culture to the concepts of delegation, combination of functions, and insulating administration from political control is explained by what legal scholars call the victory of "functionalism" over "formalism," or what political theorists might loosely translate as "pragmatism" over "originalism." Simply defined, a functionalist or pragmatic approach begins not with the forms of the Constitution, but with the necessities of the current age, thereby freeing government from the restraints of the Constitution so that the exigencies of today can be met. As one scholar argues, "Respect for 'framers' intent' is only workable in the context of the actual present, and may require some selectivity in just what it is we choose to respect." This sentiment, elevating expedience and efficiency over the separation of powers, was expressed very clearly by Justice Blackmun in his opinion for the Court in Mistretta: "Our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."
The rise of the administrative state that is such an integral feature of modern liberalism thus required the defeat of the separation of powers as a governing principle, at least as it was originally understood, and its replacement by a system that allows delegations of power, combination of functions, and the insulation of administration from the full measure of political and legal control.
The above blog was excerpted from a paper by Ronald J. Pestritto, Ph.D., Associate Professor of Political Science at Hillsdale College and a Senior Fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy. The original paper was published by the Heritage Foundation Nov. 20, 2007.
The problems posed by the development of the administrative state is the prototypical problem described in the recent book by Jay Cost—A Republic No More and the Rise of Political Corruption.