The Administrative Branch

We don't elect an administrative branch. According to the Constitution, we don't even have one. Unfortunately, it's very real.

I recently listened to lecture 9 of Hillsdale College’s current Constitution 101 class, “The Administrative State Today.” [You can register for all of Hillsdale’s online classes for free and go through them at your leisure.] Sometimes what you get from studying is discouragement. The lecture is a description of the changes in the way government is run, spread over the 20^th Century, resulting in something today that has very little resemblance to what our founders set up.

Kevin Portteus, associate professor of politics, Hillsdale College
screen shot from Lecture 9

First, in the “progressive” era, under Teddy Roosevelt and Woodrow Wilson, there was a move toward “expert” control. The legislative branch would make vague, outcome-based legislation—for example, we want clean water. Without defining that or creating rules governing water use, there was no way to ensure the outcome. So agencies were created to see to it; experts were hired, who would determine, supposedly through the best scientific knowledge of the day, to measure, make rules, and enforce them.

Already, there were some real differences between what the founders intended and how laws were being enacted. If law was to be detailed and specific to localized businesses or even segments of the population, it wasn’t supposed to come under the purview of the federal government in the first place. Laws were intended for the specific purpose of protecting life, liberty, and property of all the people. Suddenly you have some entity coming in and saying, “We don’t like how you’re doing your work or using your property, so we’re going to delineate exactly what you can do and how.”

These agencies took on a great deal of authority. The agency decided what the law was. The agency decided who was worth examining for violations of the law. The agency then investigated, prosecuted, and punished violators. They were suddenly doing the jobs of the legislative, judicial, and executive branches—and those branches seemed to cede the authority to them without much argument. Courts and legislators alike would say things like, “They’re the experts, so we won’t question their judgment in the matter.”

This was all very much in keeping with the “progressive” way of governing—with the assumption that the modern world required an evolved approach, because life was suddenly so much more complicated.

But this wasn’t enough for FDR. He saw that the regulatory agencies were headed by “experts” who had been appointed from previous administrations, and they might not have in mind the same political outcomes that he wanted. So he pushed for reforms that empowered his executive office. By executive order, he could appoint leadership of the agencies who aligned with his political intentions.

In addition, he pressed for more ways to control the agencies and their direction. One way was to go directly to the people, to recruit them to his goals, which he did using media—the first president to so use it.

And after FDR, more methods developed in a game of power between a strong executive individual and strong regulatory agencies. In this balancing act came the granting of standing to more groups. It used to be that a litigant had to show that it had been personally harmed; the change allowed groups to claim that they represented the people as a whole. It the abstract I don’t find a problem with that. But in practice, it granted groups, for example, environmental activists, to claim that they represented all Americans when claiming that we are all harmed by some practice.

Lecturer Kevin Portteus, gives the example of Massachusetts v. EPA:

the case that declared that carbon dioxide—carbon—was a pollutant that could be regulated by the Environmental Protection Agency, and that the Environmental Protection Agency had better get busy regulating it.  The lawsuit against the EPA was filed by a number of environmental organizations and by several attorneys general in the various states: ergo Massachusetts v. EPA. Under the traditional definition of standing, it is hard to see how any of them would have been able to bring suit.  They would have lacked standing. The State of Massachusetts would not have been able, in all likelihood, to demonstrate the direct harm necessary to be able to bring a case before a court in the United States.

If you’re like me, you might have noticed how suddenly talk about regulating poisons such as carbon monoxide suddenly changed to the dangers of carbon dioxide, which is what we exhale, and plants “breathe in,” and that is pretty much part of all life on earth. And suddenly experts are telling us how much is allowed in our environment.

One purpose of the lawsuits from these groups, against the agencies, was to pressure the agencies to comply with political, typically liberal, ends. In other words, it was no longer about what experts in the science decided to lay down as the law; it was what a particular president’s experts said, using their science, to control entire industries the way he wanted.

Over time, there began to be quite a lot of collusion between politicians, regulatory agencies, unions, and corporations, to meet in back rooms and hammer out deals that were in their best interests—regardless of what the best interests of the public as a whole might be. This was termed “liberal corporatism” by Chicago sociologist Robert Flax in 1964. A ruling power elite had come to control policy, with very little input from us self-governing American citizens.

There’s always danger to freedom when the American citizens have their Constitutional powers usurped. Portteus quotes Charles Reisch, from his 1970 book The Greening of America:

The tendency of administration, while it may appear to be benign and peaceful, as opposed to the turbulence of conflict, is actually violent. For the very idea of imposed order is violent. It demands compliance. Nothing less than compliance. And it must obtain compliance, by persuasion or management if possible, by repression if necessary. It is convinced that it has the best way, and that all other ways are wrong. It cannot understand those who do not accept the rightness of its view. Administration wants the best for everybody, and all that it asks is that individuals conform their lives to the framework established by the state."

We can see that today with something as basic as making decisions about where our children go to school. Incidentally, Glenn Beck’s latest book, just out, is called Conform, and relates to the imposition of Common Core in our schools.

We’re not going the right direction. Portteus says,

The Obama administration has more faith in expertise than probably any administration since Lyndon Johnson. And Obama’s old Office of Management and Budget director Peter Orszag said, “You know what the problem with our system today is, is that we don’t put enough power in the hands of the experts: we leave too much up to the people.”

At this point in our nation’s history, says Portteus,

Policymaking has very little to do with what you learned in high school civics. The old framework of, well, the legislature makes the laws and the executive enforces them and the judiciary rule on cases, that’s really been scrambled. We get very hung up today on the expansion of government power and of course that is a real problem from the founders’ perspective. But the way in which the functions of government have been reshuffled among the various institutions is also a major problem. Things are being done by institutions that were never meant to do them.

We know the direction we need to go, if our goal is freedom, prosperity, and civilization. We know that adhering to the actual Constitution will solve a myriad of problems. But getting the power back from those who have been controlling policy—and controlling us—for so many decades is a tougher question. The lecture ended before we got an answer. I don’t know yet if there is an answer.