Unmasking the Administrative State

by John Marini

  In order to retain its status of first among equals, Burnham insisted, “Congress must find a way to concentrate on essentials. If it is to continue to be a partner and peer within the central government, then its principal energies must go to deciding major issues of policy, not to the critique of details.” He assumed that “the assemblies, by their very nature, cannot be bureaucratized in the modern mode. Among the giant institutions into which society is currently for the most part arranged, the assemblies are undoubtedly anomalous, a breach in the pattern; and if all modern institutions have got to conform to the managerial-bureaucratic norms, then the assemblies are on an irreversible way out.” Burnham foresaw the growth of the bureaucratic state, but he did not foresee a role for the legislative branch within that state. Was Burnham right in his assumption that legislative assemblies could not be bureaucratized?

  However, after more than fifty years, John Samples was not persuaded that Burnham was right in his diagnosis of Congress. He insists that Congress has reasserted its power in many areas and has proved to be more than a match in terms of exercising that power in its defense against encroachment by the other branches of government. He does not deny that the “New Deal and its echoes did set Congress on a declining path toward obsolescence, and in 1959, the administrative/welfare state seemed triumphant.” However, Samples insisted that “had the fifteen years after World War II continued for the next fifty, Burnham’s bold prediction might well have been confirmed, including the demise of Congress. But the administrative-welfare state lost, and never quite regained, public confidence, and if those athwart History did not quite stop its progress, they also did not wholly fall under its wheels. The question remains whether, when historians look back at the beginning of the post–New Deal era, they will note with surprise the revival of the United States Congress.”5 It is hard to deny that Congress, when united, has ample power in terms of defending itself against the other branches. However, is Samples right in his assumption that not Congress but “the administrative-welfare state lost” the confidence of the American public? Or, is it the case that Congress has become an integral part of the “administrative-welfare state”?

  Perhaps, Burnham was only partly right in his insistence that Congress holds the key to the preservation of political liberty in America. He assumed that “legislative supremacy” was the fundamental condition of the maintenance of republican government. However, the American Founders did not believe that Congress as an institution would or could be the primary defender of liberty. Nor did they depend upon the presidency or the Supreme Court exclusively to fulfill that role. The American Founders established the Constitution, and the separation of powers, as the surest defender of freedom. This purpose could only be achieved by subordinating the power of all the branches to their constitutional purpose. It was the result of an abandonment of their constitutional role that both of the political branches of government were enabled to participate in the establishment and consolidation of the modern administrative state.

  It seems that Burnham was wrong in his assumption that assemblies cannot be “bureaucratized in the modern mode.” It is only a constitutional assembly that cannot be legitimately bureaucratized, precisely because deliberation and general lawmaking remain its fundamental constitutional purpose. In denying Burnham’s claim that Congress would cease to be a major player in modern government, Samples has shown that the revival of Congress indicated that it had been possible for Congress to give up its lawmaking power without relinquishing its authority over those administrative bodies to which it had delegated that power. In other words, it had become possible for Congress to establish itself as a major player in the politics of the bureaucratic state.

  Burnham’s book was written before Congress reorganized itself to accommodate its transformation from primarily a legislative body to an administrative oversight body. Throughout much of the twentieth century, presidents of both political parties had fought to aggrandize the administrative component of government, pushing Congress to expand the executive branch. Congress, representative of local interests and still tied to state power, was reluctant to do so. It remained a defender of decentralized administration because it insisted upon maintaining its deliberative and lawmaking function. There was another option for the legislative branch. Congress could adapt itself to the requirements of a centralized administrative state. However, it could do so only if it gave up its power to refuse to legislate on behalf of the administrative state. It was necessary to relinquish its primary constitutional function of deliberation and lawmaking in the national interest in order to use its legislative power in the service of the administrative state. It did so by the wholesale delegation of power to newly created administrative and regulatory bodies, whose ostensible authority was dependent upon technical, or rational, knowledge. Congress could retain its autonomy, and political authority, by establishing itself as the overseer of the executive branch. In the process, individual committees and members were empowered to oversee the various departments and agencies of the executive branch. They would soon become major players in the administrative policymaking process. Subsequently, Congress would become, primarily, an administrative oversight body, the “keystone of the Washington establishment,” in Morris Fiorina’s phrase, but of a new establishment.

  The Bipartisan Support for the Administrative State: Democratic Force, Republican Fraud

  Political scientists John H. Aldrich, Brittany N. Perry, and David W. Rohde have noted:

  Prior to the 1990s, the House Appropriations Committee was understood to be one of the least partisan committees in Congress. Within the committee, interparty bargaining and compromise were commonplace and subcommittees were primarily in charge of making decisions on the details of bills in their jurisdiction (Fenno 1965; Smith and Deering 1984; White 1989) … After the election of 1994 however, perspectives on the Appropriation Committee changed considerably … Members of the Republican Party empowered their party leadership to make significant institutional modifications. The new speaker of the House … centralized power and worked to ensure the committee system would achieve the interests of the party. On the Appropriations Committee in particular, the old order of bipartisan unity and committee autonomy were swept away as Gingrich took control, sidestepping seniority norms, to appoint loyal partisans to serve or chair the committee. The leadership began to monitor actions within the Appropriations Committee’s more closely and to exert pressure on its members’ behavior when necessary.6

  The problem with such a strategy is that it had the effect of transforming the legislative body into something approximating a parliamentary system, with the Speaker attempting to lead the government from the House in the manner of a prime minister. By establishing unity within the leadership of the most powerful committees, the Speaker sought to steer politics and control administration from the legislative branch. However, the Constitution had already provided for a unified executive. In the ensuing political battles during the Clinton administration, it was not the power of the legislature that was enhanced. The presidency is the focal point of national politics, the only office with a national constituency. In the attempt to shape public opinion, the unity of the executive prevailed over the diversity of the legislature. Moreover, the Gingrich reforms had the effect of undercutting the political virtues that are only possible in a legislative body: deliberation, representation, and the accommodation of interests that culminate in lawmaking on behalf of a public good. Still, in subsequent years, as Aldrich has noted: “Every Speaker of the House, Hastert, Pelosi, and Boehner, Republican and Democrat, has continued to be granted power to shape House Rules and they continued to use these Rules to control operations within the Appropriations Committee over time.”7

  Indeed, after September 11, 2001, the Bush presidency succeeded in further undermining any attempt to reestablish regular order in the House. With the creation of the Homeland Security Department, justified as necessary in the war on terror, the bureaucracy was
enabled to treat domestic security in the same way as national security, dramatically expanding executive power in a manner that could have been done only as part of its war-making powers. Consequently, it became more difficult to draw the line between the domestic and foreign policymaking powers of the president. Congress empowered the executive branch by nationalizing its police powers in the name of national security. It also created the opportunity for increased centralization of power in the congressional leadership through its use of emergency powers. As a result, unlike earlier wars, nearly all of the money for the Afghanistan and Iraq wars during the Bush administration, and Obama’s as well, was funded outside of the regular budget process through annual emergency spending provisions. Furthermore, the last two presidents have assumed broad powers in domestic affairs, such as no-bid contracts, that had been defensible only in times of war. Although Bush used that power primarily in terms of defense contracts to fight the war on terror, Obama has done so on behalf of a domestic agenda in support of environmental and other partisan interests of the Democratic Party.

  George W. Bush’s sinking popularity by the end of his second term had approached the levels of disapproval of Richard Nixon after Watergate, and the loss of both houses of Congress dramatically weakened his presidency and his party. Nonetheless, the powers of the presidency and the executive branch were hardly touched. Congress did not reassert its authority after his presidency. When Barack Obama took office, unlike Gerald Ford, he inherited all of the executive powers that had been claimed by Bush and more. Unlike Bush, Obama was more interested in using those powers on behalf of consolidating his domestic policy agenda, rather than pursuing a vigorous foreign policy. Whatever their differences, it has become more difficult to determine the limits on the legitimate power of government when one party denies any limitations in terms of domestic or national security and the other party believes government has unlimited power with regard to domestic policy. Taken together, it is politically difficult to defend the principle of constitutionalism when there is no consensus on the necessity of limiting the power of government under any circumstances as so described. Of course, political conditions may require the use of unlimited power in extraordinary circumstances, but it is incumbent upon the political branches to draw the line between normal and abnormal conditions.

  The American Founders were well aware of the fact that government must have all of the powers that are necessary in times of war. However, they insisted that Congress and the president must establish a meaningful distinction between war and peace. Each branch must participate in clearly establishing the conditions of war, identifying the enemy, and determining what constitutes the end of hostilities. Only in that way is it possible to reestablish the conditions of normal government. Peace, not war, must determine the manner in which the institutions of government must operate in normal times. Under the conditions established by the ongoing requirements of the war on terror, it is almost impossible to distinguish war and peace or to determine when the emergency measures can be dispensed with. If the necessity of preparation for war is a constant and ongoing condition of civic life, no limitations can be imposed on government. This condition is compatible with bureaucratic rule, but not political or constitutional rule. In light of this transformation of the governing institutions, it was not surprising that after the 2010 midterm elections, the new Republican majority in the House did little in terms of reinvigorating congressional prerogatives on behalf of political rule. Indeed, they further eroded the powers of the rank-and-file membership. As former Senate Parliamentarian Robert Dove noted not long ago: “What you have in Congress right now is a situation in which things are simply bucked up to the top level—the two leaders in the Senate, the Speaker in the House. They frankly ignore the regular order and go on their merry way.” Although it is true, it is also the case that the president and the executive branch bureaucracy now play a major role in establishing and driving the agenda of Congress. That transfer of power to the administrative apparatus has facilitated centralizing decision-making in the leadership of the two branches. In the absence of ongoing oversight of the executive branch through the committee structure of Congress, the bureaucracy will establish its own priorities. Any attempt to remedy this situation would require something like a return to regular order. That would make it possible for rank-and-file members to influence legislation and administration at the committee level.

  In the past, members devoted their career to those policy areas in which their committee had jurisdiction. It was in the ongoing process of subcommittee hearings, bill markups, floor amendments, and conference reports that a congressional consensus could be established that all could live with even if they didn’t like it. It enabled Congress as an institution to participate not only in legislation but also in administration by controlling the budgets of the agencies. In futile gestures, such as getting rid of earmarks, the Republican leadership has forced rank-and-file members to petition the Office of Management and Budget (OMB) in order to influence the administration in their own districts. Those reforms were meant to remedy features of Democratic Party majority control that Republicans did not like. But, like it or not, they are effective ways of establishing political control of administration. Unfortunately, in the absence of member participation, the considerable expertise and control that came with longevity on a committee has been nearly lost. Furthermore, when the committee and subcommittee members no longer participate, you get speedy, ill-considered legislation cobbled together by the Senate and House majority leadership staff, which is heavily influenced by interested stakeholders in the private sector. All of these things together cannot help but strengthen the interests of the administrative state.

  With a divided legislature and the majority party, or a minority party in one chamber, whose members become surrogates on behalf of the executive branch (or the administrative state), it is difficult to establish a distinctively legislative perspective on policymaking. As a result, no policy that is representative of the interests of Congress as a legislative body is likely to emerge; rather, the administrative process becomes the center of all politics. That process undermines the power of the electorate within the states. They have little way of participating in national politics, because their representatives in Congress are far less able to influence policy and are often powerless even to influence administration except by petitioning the executive branch. Even those in leadership positions must be more attentive to the powerful and centralized, well-organized national interests than they are to their national or constitutional duty or to the interests of the constituencies that elected them.

  In short, the leaders of both branches of government have ceded power to the bureaucracy and enabled it to rule on behalf of the national, economic, sub-political (states and local governments), social, scientific, educational, religious, and cultural elites. It is those elites who have obtained a privileged position in terms of lobbying the national political branches and the regulatory bodies. The political branches have, in turn, allowed those interests the ability to bargain and negotiate with the departments and agencies that promulgate the rules by which they are governed. It is difficult to say that this process has produced a regime in which the rule of law must establish the conditions of equal treatment of all citizens. Rather, it sanctions unequal privilege for those who have a seat at the table and allows them to participate in negotiating the rules that govern everyone.

  Is it possible for the separation of powers to work properly once the administrative state has been put in place? Or, have we reached a point in which it is no longer possible to understand American politics in terms of constitutionalism? Although the Constitution structures the political institutions and establishes the powers and the conditions of office for all of the branches of government, those powers are no longer used on behalf of a constitutional purpose. At best, in recent years, the branches have defended their institutional powers only when it was necessary to defend the bureaucracy against t
hreats to its existence. In any case, the separation of powers no longer works as it was intended, on behalf of establishing limits to the powers of government by preventing the domination of will in any one (or all) of the branches of government. The reason of the Constitution, as Madison noted in Federalist 49, should control the passions and regulate the conditions of politics on behalf of the people, not the government. In the administrative state, the passions of the people are used on behalf of government for the purpose of undermining the political conditions of self-rule.

  Constitutionalism and the Challenge of the Administrative State

  It is not an exaggeration to say that separation of powers epitomized the political science of The Federalist. In fact, it was this institutional arrangement that was thought to be most vital to the science of politics that derived from those “inventions of prudence” of which James Madison spoke. Although prudence, or practical reason, was necessary in terms of establishing the practical or political science of free government, Madison’s “new science of politics” also had a theoretical foundation. Madison assumed that the principles of the new regime were derived from a philosophical understanding of human nature; they were the product of theoretical reason.