It’s time to reform our administrative state. House Speaker Nancy Pelosi was right when she said Congress would have to “pass the health care bill so you can find out what’s in it.” That’s because the health care bill, like most major laws passed by Congress over the past hundred years, isn’t really a law. Rather, Obamacare is a series of assignments to bureaucrats in the Department of Health and Human Services. It is emblematic of what scholars call the administrative state, where legislative, executive and judicial powers are delegated to unaccountable experts sequestered in a fourth branch of government.
If we are seeking the most effective means of defending - and restoring - the Constitution, we must pay attention to the rise of the administrative state and the decline of constitutional government in the United States.
The Founders confronted a basic problem: How to vest government with sufficient power to get things done without giving it the instruments to exercise tyrannical control? To protect individual liberty and rights, they established (among others) two basic principles at the center of our constitutional order: representation and the separation of powers. To assure that government operated by consent, they provided that those responsible for making laws would be held accountable through elections. Moreover, legislative, executive and judicial power would be separated so those who made the laws were not in charge of executing and applying them.
Our modern administrative state violates these principles. That also is by design, courtesy of the progressives - the original architects of the administrative state. Progressives such as Woodrow Wilson disdained the idea of government “by the people” and sought to replace it with government by the experts. Wilson complained of America’s “besetting error of … trying to do too much by vote.” “Self-government does not consist in having a hand in everything,” he argued.
The progressives sought to circumvent representative government by transferring power from Congress to a newly created fourth branch of government, our modern bureaucracy. Congress would no longer make laws but merely pass bills that consist of assignments to agencies. The actual laws then would be passed by agencies in the form of “rules” carrying the full force of law.
However, Article I of the Constitution requires that “all legislative powers herein granted shall be vested in a Congress.” This is not optional. The people, through the Constitution, delegate legislative powers to the Congress. Only the people can delegate legislative power, because they are sovereign according to our founding principles. Legislative power cannot be further delegated.
James Madison wrote in the Federalist No. 62, “Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?” Todays administrative state violates Madison’s principle.
The progressives also had contempt for the Constitution’s separation of powers. James Landis, an influential adviser to Franklin Delano Roosevelt, explained that administrative agencies arose in response to “the inadequacy of a simple tripartite form of government to deal with modern problems.” Circumventing the separation of powers, these agencies would not only have the power to make laws - they also would be authorized to investigate, prosecute, adjudicate and enforce violations of those laws.
Herbert Croly, progressive intellectual and founder of the New Republic, explained that such agencies composed “a fourth department of the government” that “does not fit into the traditional classification of governmental powers. It exercises an authority which is in part executive, in part legislative and in part judicial.” Agencies would be “a convenient means of consolidating the divided activities of the government for certain practical social purposes.”
The administrative state holds sway today. The overwhelming majority of laws in this country are made not by Congress, but by administrative agencies. They execute their laws and adjudicate alleged violations of their laws through agency-employed hearing officers or administrative law judges. In this fourth branch of government, filled with unelected and unaccountable experts, all three powers of government are consolidated.
But all is not lost. In the minds of the people, the Constitution is still the governing document of this country. Most just haven’t paused to ponder how far we have strayed from its structural design. But the political will to return to the Constitution is there, and increasing daily.
Two things are needed urgently. First, we need a public education program explaining the pervasiveness of our administrative state and how it departs from the Constitution’s vision.
Second, and more difficult, is a practical road map for restoring the principles of representation and the separation of powers. The question is not necessarily how to make government smaller, but how to get it back under popular control and accountability.
We must devise a strategy to: bar Congress from delegating legislative power to agencies, eliminate the consolidation of all three powers in these agencies and make these agencies accountable to the people.