by John Marini
The separation of powers makes it difficult for a single branch to establish the legitimacy of the use of power by legal argument alone; all of the respective branches must exercise their own powers on behalf of a defense of their institutional and constitutional purpose. Only in that way can the politics of governing support the principle of constitutionalism. The purpose of the separation of powers is to inhibit the ordinary, if sometime necessary, acceptance of will (however understood) as the ground of political right. In short, not all of the branches acting in concert can establish constitutional legitimacy in the long run if power is used in violation of the principle of limited government. The legitimate powers of government are those whose purposes are compatible with the defense of the sovereignty of the people, the protection of their rights, and the maintenance of the rule of law. Of course, such political, or constitutional, rule presupposes the sovereignty of an enlightened people as the authority of the compact. It requires that legitimate government be established on the foundation of the consent of the governed. It almost goes without saying that when a people cease to be enlightened concerning the protection of their rights or are insufficiently vigilant concerning the use of power by government, they cannot retain the form of constitutionalism regardless of its structure. They have already lost its spirit by failing to understand or by denying its principle.
In other words, contrary to the view that the unlimited power of government is a necessary and inherent attribute of the rational state, it is government itself that must be limited by the principle of constitutionalism. When the Constitution comes to be understood historically or as a progressive document, whether by the court or the political branches, it can no longer provide a principle of legitimacy on behalf of limited government or in defense of natural right. Moreover, the government of the state becomes increasingly indifferent to the necessity of justifying its legitimacy in terms of the sovereignty of the people. Consequently, it becomes impossible in practice to ensure that the consent of the governed can remain a necessary condition of political right. When legitimacy is thought to be derived from moral will embodied in the concept of the rational state, however established, the state itself must come to be understood as sovereign. At that point, it is clear that rights are a product of the state and must be conferred only by its government. In the final analysis, it is rationality alone that establishes legitimacy within the state.
The ongoing political and intellectual battles of the twentieth century have revolved around the difference between limited-government constitutionalism and the unlimited power required by the modern rational state. Beneath the surface of the partisan battles over the size and scope of the national government, however, there is a deeper, more fundamental quarrel over the justice or injustice of constitutionalism itself. The modern rational, or administrative, state was established on the assumption of its theoretical and practical superiority over every earlier form of government. It rested on the view that constitutionalism was an historical anachronism. The legitimacy of the modern administrative state, and its inherent rationality, is derived from a philosophy of History that has presupposed the end of political conflict. Only then is it possible to replace politics by establishing technical, rational, or bureaucratic rule.
Throughout much of the twentieth century, the practical defense of the administrative state—the only one apparently agreeable to all political parties—rested upon its alleged nonpartisanship, or neutrality. Although it was clear from the start that bureaucracy was in fact a partisan on behalf of the administrative state, the inability to comprehend the purpose, or theoretical character, of the administrative state had obscured its political dimension. By the beginning of the twenty-first century, with the institutionalization of the administrative state, political partisanship in defense of the administrative state has almost replaced the ongoing necessity of defending the political and constitutional powers of the legislative and executive branches of government. Thus, it has become easier to see that the practical domination of government by administration threatens to undermine political or constitutional rule. It has also forced a reappraisal of the theoretical origins of the rational state, which has made it necessary to reveal historicism in its political dimension, thereby making Progressivism a part of the political debate.
In the last two decades, it has become clear that the bureaucracy can no longer be understood, or justified, in terms of its neutrality. The bureaucracy has become a partisan defender of the rational state, and it has allied itself with political partisans of both parties in defense of its interest. However, bureaucratic rule has become controversial and will remain a contentious issue in American politics as long as it lacks legitimacy. Moreover, it cannot establish its legitimacy in a regime structured by the constitutional device of separation of powers, which legitimizes only political power. The bureaucracy has no constitutional authority whatsoever. Its power must be derived from legislative authority delegated to it or judicial authority that upholds its rulemaking power. Nonetheless, the wholesale delegation of power to the administrative apparatus has transformed the operation of the political branches and undercut their ability to function amicably in pursuit of a constitutional, or common, good. In short, administrative centralization has produced a disjunction between the theoretical and practical or political dimensions of constitutionalism, and between the principles that legitimize action and the practice of the institutions of government derived from those principles. It has undermined the most important practical safeguard of constitutionalism: the political cooperation necessary for the separation of powers to work.
The proponents of the administrative state have viewed separation of powers as an antiquated relic guaranteed to ensure deadlock. In their view, the fundamental distinctions in society cannot be understood in terms of politics or limitations on the powers of government. Economic and social conditions determine what must be done. Nor is there a fundamental distinction between government and civil society or the public and private sphere, which must be preserved as a condition of self-rule. Rather, the crucial practical distinction, one elaborated by the early Progressives, is that between the political institutions and parties that authorize policies and legitimize them in the form of moral will and the administrative apparatus that rationalizes them and makes them practicable or real. Nonetheless, the progressive theorists and politicians, who had established the administrative apparatus as a means of overcoming limitations on the power of government imposed by the Constitution, have not yet succeeded in undermining attachment to the principle of constitutionalism. Insofar as the people understand the Constitution as the ground of their sovereignty, they have become increasingly aware of the necessity of imposing limits on bureaucratic power and have sought to restrict the scope of administrative rule. It is not surprising, therefore, that in recent years, the Constitution itself has become a partisan tool utilized by those who seek to retain, or reanimate, political rule in opposition to the encroachments of the administrative state. In doing so, they have demanded that the Constitution remain the primary source of legitimacy and the standard by which to measure rightful authority in the American regime.
The American administrative state cannot be judged on the basis of political theories that already presuppose the legitimacy of the modern state.2 Nor can it be assumed that administrative centralization is the inevitable consequence of the necessity to adapt to changes in society brought about by industrialization and urbanization or by progress in science and technology. The American administrative state was put in place after the major transformations of society had occurred. It was the result of conscious political choice. Consequently, the American administrative state must be judged by its impact upon the practical politics of the constitutional system. How does it affect the conditions of pre-bureaucratic rule: of limited government, separation of powers, and American federalism? Has it undercut political freedom and undermined the conditions of self-government? To the extent the administrati
ve state is a problem in American politics, it is the result of the manner in which the institutions of government, and the constituencies allied to them, have adapted to the presence of a centralized bureaucracy.
Politics or Administration
Nearly every American political or constitutional crisis has revolved around the conflict generated by the differences arising from the separation of powers. The practical operation of that separation is nowhere better revealed than in the federal budgetary process. It is the one place in which the political branches have been forced to interact by the authority of the Constitution itself. Taxing and spending, revenues and expenditures—all are required for all governmental activity, noble or ignoble, of great or little purpose. Both branches of government have been given significant power dealing with taxing and spending. Partisan political rhetoric, and utopian expectations, often make it difficult to measure the success or failure of government actions. Of course, high hopes cannot be measured in dollars alone, but they require dollars to make them real. In observing the opinions that animate politics, or attempting to justify the policies and programs, assessing its personnel and management; nothing provides a better focus into the uses of power than control of the purse. That power, and its purpose, is spelled out in concrete ways by attaching dollars to what is to be done. It is not surprising that both political branches of government have sought to guard their powers with regard to the purse. And, throughout much of American history, both branches have attempted to understand their own monetary powers in terms of their institutional and constitutional purpose. There was, however, a fundamental transformation in American politics that began to reveal itself by the end of the twentieth century. Although the Constitution still structured the institutions of American government, the separation of powers seemed no longer to operate on behalf of the principle of constitutionalism. Nor did any of the respective political branches of government seem to understand the importance of defending their institutional prerogatives in terms of a constitutional purpose. In short, it appeared that American political conflict had been transformed in a practical way by the growth of the administrative state. Neither party nor political branch, in the absence of extraordinary events such as 9/11, could begin to articulate a conception of a common good that could establish a governing consensus on behalf of the electorate or provide a common ground of agreement between the branches of government.
In other words, it seemed that the constitutional arrangement of power no longer established the political conditions out of which a common good could be articulated let alone achieved by the political branches of government. As a result, it has become more difficult to prevent the domination of a single will, however understood, as that which establishes the ground of morality and creates legitimacy in American politics. Whether will is understood in terms of presidential plebiscite, judicial fiat, or public opinion that purports to establish the majority, or intellectual minorities, as the embodiment of moral will, the triumph of will tends to undermine rather than encourage genuine political conflict and debate. In the absence of such conflict, there is no need for public deliberation or accommodation for differences of political opinion. Unless it is in response to elections, it becomes unnecessary to formulate, articulate, or defend a conception of a public good. Rather, the only necessity of government is that of mobilizing and accommodating the various economic or social interests. As a result, the administrative process has become more important than the political, or formal, lawmaking process established in order to make the separation of powers work in practice. Consequently, it has diminished the institutional power inherent in each of the respective political branches of government and has undermined the rule of law by replacing political rule with bureaucratic rule.
The actual practice of the political branches of the American government is driven increasingly by the ongoing necessity of accommodating the various interests and constituencies that have coalesced around the administrative state. In other words, it is an element of government itself—the bureaucracy—that has established the purpose, unity, and rational authority of the political branches. And, the courts, too, have sanctioned that transformation by allowing Congress to delegate authority to administrative bodies by passing unfinished or incomplete laws. In short, after nearly a half century of its growth, the bureaucracy has revealed itself to be the conservative defender of the liberal or rational state. Once established, the bureaucracy, and the political, economic, and social forces beholden to it, have sought to progressively replace politics by substituting administrative rulemaking for general lawmaking and to rule by expert in place of that of elected official. In practice, the political rule of law must increasingly give way to executive or administrative discretion.
The various crises that have occurred between the branches, whether the more recent government shutdowns or the potential showdown over the debt limit, are only the latest in a long series of such crises in Washington. In fact, with few exceptions, the budgetary process has formed the battleground between the parties and the political branches of the government—the executive and the legislative—in every administration since LBJ’s Great Society. That starting point is not a coincidence: the Great Society marked the beginning of an expansion of the political power of the federal government and a centralization of administrative authority in Washington that had long been the domain of local and state governments. In addition to destroying the fabric of federalism, this centralization had the effect of undermining the separation of powers, making it difficult if not impossible for Congress, the president, and the bureaucracy to function amicably in pursuit of a national interest. What we have seen in subsequent decades is the steady expansion of a modern administrative state that is distinctively American in that it coexists with a limited-government constitution.
In America, the administrative state traces its origins to the Progressive movement. Inspired by the theories of German political philosophers, Progressives like Woodrow Wilson believed that the erection of the modern state marked an “end of History,” a point at which there is no longer any need for conflict over fundamental principles. Politics at this point would give way to administration, and administration becomes the domain not of partisans but of neutral and highly trained experts. America’s Founders shared a radically different understanding, an understanding based not on History but on nature. James Madison wrote in The Federalist Papers that factionalism is “sown in the nature of man”; thus, there will always be political conflict—which at its starkest is a conflict between justice (the highest human aspiration concerning politics) and its opposite, tyranny. This conflict between justice and tyranny occurs in every political order, the Founders believed, because it occurs in every human soul. It is human nature itself, therefore, that makes it necessary to place limits on the power of government.
Progressive leaders were openly hostile to the Constitution not only because it placed limits on the powers of government, but because it provided almost no role for the federal government in the area of administration. The separation of powers of government into three branches—the executive, the legislative, and the judicial—inhibited the creation of a unified will and made it impossible to establish a technical administrative apparatus to carry out that will. Determined to overcome this separation, one of the chief reforms promoted by early Progressives was an executive budget system—a budget that would allow Progressive presidents to pursue the will of a national majority and establish a nonpartisan bureaucracy to carry it out. Congress was initially reluctant to give presidents the authority to formulate budgets, partly because it infringed on Congress’s constitutional prerogative—but also because it was still understood at the time that the separation of powers stood as a barrier to tyranny and as a protection of individual freedom. Eventually, however, Congress’s resistance weakened.
For several decades after a federal budget process was put in place, a consensus concerning the size and purposes of the federal government
limited the conflict over control of public finances. Administrative functions at the national level were few, in keeping with a system of decentralized administration, an autonomous civil society, and a constitutional system that underscored the limited character of government. This would change in the 1970s, during the Nixon administration, when Congress reorganized itself to become a major player in the administrative process that had risen with the Great Society. The public consensus in support of limited government and balanced budgets began to break down. Moreover, Republican presidents, at times representing national majorities opposed to the expansion of government, and Democratic Congresses organized around private interests in support of democratic expansion became rival forces to an extent incompatible with the pursuit of a long-term public interest.3
In looking at the changing expectation and perceptions of Congress over the last half century, it is not hard to see that a fundamental transformation of the institution has taken place. Not too long ago, it was the conservatives who were the heartiest defenders of Congress. Recently, John Samples, of the Cato Institute, revisited an old political controversy concerning the status and purpose of the legislative branch within the American regime. In doing so, he engaged the arguments of an older generation of conservative defenders of Congress, those who had been troubled by the waning influence of that institution since the New Deal. Samples looked primarily to James Burnham, whose book Congress and the American Tradition, published in 1959, raised the question whether Congress as an institution could long survive in the age of executive dominance. Burnham was not sanguine about the prospects of its survival. He was persuaded “that the political death of Congress would mean plebiscitary despotism for the United States in place of constitutional government, and thus the end of political liberty.” Burnham, like Willmoore Kendall, believed that “to keep their political liberty, Americans must keep and cherish their Congress.” Burnham traced the decline of the legislative body to the rise of the bureaucratic state. He insisted that “Congress has let major policy decisions go by default to the unchecked will of the executive and the bureaucracy.”4