Magazine | December 7, 2015, Issue

Shall We Have a King?

(Luba Myts)
The Founders said no, but today Congress and the courts aren’t so sure

If the passage of time were a reliable guarantor of increasing human freedom, we would expect history to look a little different than it does. In school, we would have learned that the Englishmen of Charles I’s reign were better off than their Elizabethan grandparents; that the colonists implicated by the Declaratory Act had fairer prospects than those who had been governed with what Burke called “salutary neglect”; that the Germans of 1935 possessed an advantage over those of the Bismarcksche Reichsverfassung. That we did not learn any of this should tell us something. As Thomas Jefferson had it, “the natural progress of things is for liberty to yield, and government to gain ground.” There are no new fights in politics.

Do we know this? In the United States, as in the rest of the Anglosphere, we seem to believe that we are the children of legislatures, not of kings; the beneficiaries of careful reasoning, not of iron will; the heirs to a safe political settlement immune to disintegration. That we are proud of our institutions is understandable. But our unshakeable confidence in their permanence is not. There is nothing written in the stars that secures in perpetuity our free system of laws. There are no stone tablets upon which legislative supremacy and judicial integrity are guaranteed against usurpation. Men’s hearts are no less ambitious this week than they were in the era of the pyramids.

As I write, the president of the United States is openly promising to finish off his second term with a flurry of extraconstitutional activity. By the power invested in his “pen and phone,” Barack Obama intends to wield his “executive authority” in order to institute a set of environmental rules that the people’s representatives have declined to grant him; to close the prison camp at Guantanamo Bay in direct defiance of Congress’s will; and to further circumvent a series of immigration laws that have been on the books for decades.

These are no idle threats. In his second term alone, this president has rewritten by fiat some of the central portions of his signature legislation, Obamacare; granted a series of unauthorized waivers from the 1996 Welfare Reform Act; and instructed agencies such as the IRS and the EPA to push forward with the enforcement of a series of administrative rules that simply cannot be justified by the texts of their enabling statutes. Most alarmingly of all, he has repeatedly made it clear that these actions are not the natural outworking of legal ambiguity, but a deliberate response to congressional inaction. Once upon a time, Obama insisted that he was “not a king” or an “emperor” or a “dictator,” and confirmed that his “job as the head of the executive branch ultimately is to carry out the law.” Now he justifies his behavior with talk of necessity and vows that if “Congress won’t act,” he will.

John Adams characterized the office that Obama holds as enjoying “the whole executive power, after divesting it of those badges of domination called prerogatives.” In this assessment he was reflecting what might be regarded as the Founders’ central conceit: that when the laws that govern men’s fortunes are subject to the whims of the powerful rather than to the consent of the governed, there can be no liberty. Are we at liberty?

In his recent book Is Administrative Law Unlawful? Columbia University professor Philip Hamburger suggests that we are not. The Constitution of the United States, Hamburger contends, represented a conscious attempt to banish from this country’s political structure a host of the insidious tools upon which monarchs and emperors had historically relied: among them prerogative lawmaking, legislative enabling acts, suspending and dispensing powers, and the investment of legislative, judicial, and executive functions into one body. Alarmingly, Hamburger concludes, these features have gradually found their way back into the system — not because the Constitution has been overthrown or because Washington, D.C., has been occupied by an invading force, but because over time we have constructed an unwarranted “fourth branch” in addition to the original three, and we have allowed the executive branch to take advantage of it.

By “fourth branch,” Hamburger is referring to the vast caste of unelected government employees who staff the array of administrative agencies that have sprung up around the country since the start of the 20th century and, slowly but surely, enjoyed ever-increasing power over our lives. Far from reflecting a benign, novel, and necessary change in the detail of our self-government, Hamburger submits, these entities are returning us to the bad old days of rule by fiat. Unlike the Prussians and the French, he argues, Anglo-American societies have historically insisted that the liberties of free men be restricted only by the legislature and the courts, not by executive decree. By permitting a vast and unaccountable bureaucracy to grow in their midst, Americans have reimported into their system a virus against which their Constitution was supposed to protect them. Worst of all: They have done so without a care in the world.

Hamburger’s provocative thesis should, at the least, force us to consider an important question: Why do we tolerate behavior from our bureaucracy that we would never allow in other circumstances? Imagine, if you will, that an American citizen were arrested on suspicion of stabbing somebody and subsequently charged. Ceteris paribus, we would require a number of conditions to be met in order for his conviction to be acceptable. First, we would expect the law that he was accused of having broken to be present in a specific statute that had made its way through the established legislative process. Second, we would expect the authorities tasked with his prosecution to be under the jurisdiction of the executive branch and bound by rules that had been contrived by the legislature and interpreted by the courts. And third, we would expect him to be given an independent trial overseen by a judge and decided by a jury of his peers. Anything less would be unacceptable.

If a state legislature attempted to “consolidate” this process on the grounds of its “complexity,” we would steadfastly object. But now suppose that instead of being subject to laws that had been passed by the legislature, enforced by prosecutors from the executive branch, and overseen by an independent judiciary, our hypothetical suspect were left at the mercy of an unelected “violence agency” that had been empowered to make binding determinations as to (a) what constituted “stabbing,” (b) who were guilty of it, and (c) what their punishments should be. Would we not riot? Not only would the opportunity for abuse be deemed flatly unacceptable, but we would wonder how exactly it was that a legislature saw fit to subdelegate to the executive both its own enumerated powers and a set of judicial functions to which it had no rightful claim.

Why, then, is this not the case elsewhere? Why do we shrug our shoulders when Congress bestows upon the executive branch extensive powers to promulgate, enforce, and adjudicate binding rules? Why do we not revolt when the IRS is given the task of writing its own laws in-house (we used to call this “prerogative”) and enforcing them outside the courts (we used to call this “consolidation of power”)? Why is there no great uproar when HHS and USCIS willfully delay enforcement of unpopular provisions of the law to aid the president’s reelection bid (we used to call this “suspending”) or hand out waivers of onerous requirements to favored groups (we used to call this “dispensing”)?

Most important of all, why are we not up in arms when the president openly abuses his position as the head of the bureaucracy in order to circumvent Congress’s explicit will? When even left-wingers such as Georgetown Law School’s Jonathan Turley are warning that Barack Obama has now become “the very danger the Constitution was designed to avoid,” should our ears not perk up? Our Founders’ ancestors in Britain spent centuries trying to rid their constitutional structures of opportunities for abuse. Why are we so indifferent to their return?

The usual answer given to those who pose this question is that the contemporary administrative state is rendered inevitable by the complexities of modern life, and that all principled objections are therefore rendered moot. Woodrow Wilson, who was openly disdainful toward the American system of government as it had been handed down to him, made this case repeatedly, writing as early as 1887 that the “difficulties of governmental action” that had been seen “gathering in other centuries” were “culminating in our own” and desperately needed to be addressed. His proposed fix was for Congress to delegate some of its rule-making powers to the bureaucracy.

For too long, Wilson contended, the state had been bound by rules that were appropriate for the 1790s but not for his era; it was time to elevate “administrative study and creation” above traditional notions of representation and consent. Anticipating the charge that he was coming out against democracy itself, Wilson struck a defensive pose. “Self-government,” he argued, “does not consist in having a hand in everything, any more than housekeeping consists necessarily in cooking dinner with one’s own hands.”

At worst, this reasoning is a throwback to the Roman civil law that the Founders had abhorred and the Prussians idolized and an explicit rejection of the anti-dictatorial instincts of Anglo-American liberalism. Which tyrant, we might ask, does not make a similar case in pursuit of greater power?

At best, Wilson’s argument is a good-faith but terribly naïve attempt to make government “work.” When the Supreme Court rules, as it did in 1989, that in an “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,” it is echoing the contention of men who believed that it was important to take certain questions out of the political realm so that they might be better answered.

Somewhere within this contention there is a kernel of truth. If the federal government is to work effectively, at least some delegation will have to be permitted. But while it is one thing to acknowledge that Congress does not have the time to engage every small-ball question, it is quite another to endorse legislators’ filling our laws with endless invitations to executive caprice. Here, as elsewhere, to accept that occasional exceptions must be granted is by no means to demolish the rule. There is a difference between a legislature’s charging the executive with certain narrowly specified tasks and a legislature’s delegating broad legislative powers to that executive. Slowly but surely, we have forgotten this.

Today it is evident that promises of apolitical rule-making have gone unrealized and that delegation of legislative authority is not the exception but the rule. Worse still, the dream of an impartial, virtuoso-driven bureaucracy has been cast aside in favor of monarchism. In 2015, the bureaucracy does not exist as a hive of expertise held aside from the hurly-burly of partisanship and ideology, but as a weapon that is wielded by the incumbent executive and insulated from congressional pushback. From the Reagan administration onwards, American presidents have come to use their control of federal agencies as kings once used their crowns. If a given commander-in-chief doesn’t like the substance of a given law, he claims that it is vague and issues a new rule to “fix” it; if his signature legislative achievement isn’t working so well, he suspends or dispenses with its unpopular or problematic provisions until the politics improve, regardless of whether the statute accords him such discretion; if the other branches will not play ball, he fulfills their roles for them.

Worse, he is aided and abetted in doing so by the very institutions the Constitution anticipated would stop him. In theory, Congress should be able to limit the bureaucracy’s potency by repealing or amending its grants of power and by limiting the types of instances in which it subdelegates its judgment. In practice, the rise of ideologically unified parties has rendered this an impossibility. When Congress and the White House are run by politicians with the same aims, there is little incentive to roll back the frontiers of executive authority. And when they are not, the dissenters hardly ever have the votes to override the president’s veto. If Americans wish to change the status quo, they will need to start electing politicians who are as committed to protecting the powers of their branch as they are to their agendas (this will be extremely difficult) and to insist that oversight legislation such as the REINS Act (which forces Congress to take a vote on especially expensive regulations) makes it into law.

The judiciary has not helped matters. Under the Chevron doctrine, propounded in 1984, the Supreme Court has routinely granted federal agencies broad latitude to interpret Congress’s will, on the presumption that if those agencies abuse or overextend the power they have been granted, legislators will step in and stop them. But because legislators have proven themselves incapable of supervising the administrative archipelago, a power vacuum has emerged into which the executive has been all too happy to step. Justice Clarence Thomas, who objects vehemently to the judiciary’s reticence in this realm, charges that his branch has “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.” Chevron must be overturned.

In our wider political culture, objections such as Thomas’s tend to be met, if at all, with the counterargument that, because the United States is a democracy, its administrators can pose no serious threat to the people. If the bureaucracy were to become egregiously tyrannical, this argument goes, either the elected president or the elected Congress would act. That neither has done so must reflect some degree of public satisfaction.

This rejoinder, alas, is a poor one. If, as the American system presumes, we all have a right to a voice in making the laws that limit our freedom — and if there is a branch for which we vote that is charged with determining those laws — it is nothing short of tyrannical for the state to deny us that right. The United States is a constitutional republic, replete with a set of rules that govern how power may be wielded and by whom. There exists no provision within its codified order that ties the power enjoyed by each branch to that branch’s transient popularity. If there is a constitutional problem with the scope of the administrative state, it obtains regardless of the opinion polls. As one would not submit that a president’s 90 percent approval rating has invested him with the power to change the tax rates or to issue judicial opinions, so one should not assume that the problems attendant to administrative overreach evaporate because 51 percent of the public is on board. If Philip Hamburger is correct to argue that Article I does not permit any subdelegation of the “legislative powers that have been granted” — and I think he is — he is correct irrespective of the electorate’s will.

And if Hamburger is wrong, and the Constitution’s silence on subdelegation should be taken to imply permission? Well, we should still be concerned. Seductive as it may sound, the claim that the administrative state is subject to meaningful democratic oversight is in practice rather weak. By its nature, the modern bureaucracy is a quasi-permanent force, vast swathes of which remain in operation regardless of who holds elective office and with what brief. For the administrators’ apologists to contend that our contemporary rule-makers are legitimate because they were empowered by those who were at one point elected will simply not cut the mustard. Now, as in Washington’s time, we write our laws down so that those who are bound by them know what they are bound by. There is no advantage to our doing so if the men tasked with enforcing them are permitted to suspend them or to fill out their meaning as their political desires demand.

Which is all to say that, pace Woodrow Wilson & Co., the recipe for political liberty is as it ever was. For men to be free, the law must be difficult to change, and it must be changed only by those whom we send to represent us; it must be universal and comprehensible in its application; it must be limited in its scope (by both hard rules and soft conventions); and it must be contrived, executed, and overseen by parties whose specialized functions are clearly set apart from one another. These conventions took a long time to develop, and they will take a long time to forget. But if they are circumvented often and egregiously enough, forgotten they will eventually be. There is always a crown beyond the horizon.

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