Unmasking the Administrative State

by John Marini

  The immigrants who came to America after the 1965 Immigration Act had fewer reasons to become citizens of the United States. The administrative state had begun to expand and consolidate its grip on American politics. Those immigrants who came were often more interested in what the government could provide. It was becoming less important, therefore, to participate as members of a political community. Although economic opportunity still provided a stimulus for those coming to America, the role of the federal government had changed in regard to the understanding of the status and rights of immigrants and aliens. As Daniel Tichenor has observed, “The post-1960s ‘rights revolution’ gave immigrants fewer reasons to become citizens. Naturalized voters and parties were no longer the lifeblood of expansive immigration policies.”71

  In the next decades, there is no question that Mexicans and other Latin American immigrants naturalized at very low rates compared to the earlier periods. Why did this happen? As Peter Schuck and Rogers Smith have observed,

  The law … increasingly speaks of individual “rights,” the language of entitlement, rather than of their “interests,” the language of policy and accommodation. Moreover, the law increasingly emphasizes the values of equality, group interest, and nondiscrimination.… And it is welfare state membership, not citizenship, that increasingly counts. Political membership uniquely confers little more than the right to vote and the right to remain here permanently; the former is used by only a bare majority of eligible voters, while the latter, although undeniably valuable, is problematic for only a minority of legal aliens.72

  Moreover, the 1965 act, when interpreted by the bureaucracy and courts, had created a new category of those who could become beneficiaries of government and constituencies of the administrative state—aliens, legal and illegal. As a result of those policies of the bureaucratic apparatus of the state, which blurred the distinction between entitlements and responsibilities, it had become difficult to distinguish between the rights and duties of citizens and noncitizens. With the consolidation of the administrative state, it is difficult to understand the policies of government in any way other than the conferring of benefits to various groups or constituencies without regard for a public good.

  The legislative and judicial remedies of the last half century designed to deal with the problems of immigration and citizenship have not succeeded in lessening the conflict over the protection of fundamental rights. That is because citizenship is still understood in terms of those historical categories of race and class established in the notion of the state. It is not surprising that this failure to understand citizenship as a social compact of the people, based on the principle of equality, has resulted in undermining the distinction between citizens and aliens, legal and illegal. The apparatus of the administrative state has extended rights and privileges to noncitizens that would be incomprehensible were it not for the fact that it is the state, and not the people, that has become sovereign. As a result, the government of the administrative state has produced an immigration policy that has generated very little public support among American citizens.

  Furthermore, the remedies for protecting the civil rights of every American have not united but divided the country. In the public debate on immigration reform there was an explicit linkage between civil rights and immigration reform. As Vice President Hubert Humphrey noted, “We have removed all elements of second-class citizenship from our laws by the Civil Rights Act.… We must in 1965 remove all elements in our immigration law which suggests that there are second-class people.… We want to bring our immigration law into line with the spirit of the Civil Rights Act of 1964.”73 Not surprisingly, the Civil Rights Act of 1964 and the Immigration and Nationality Act of 1965 were primarily justified by their intention to reverse the racism in a society that had sanctioned segregation and the quotas of the Immigration Act of 1924. But the remedies for both problems were achieved not by denying that group status or race ought to establish the ground of civil rights or citizenship but by giving preference to the previously excluded groups and races. In short, it had not been possible to reestablish civil rights, or immigration policy, on the ground of the equality of all individuals.

  Conclusion

  The pervasiveness of an understanding of man and citizenship in terms of race and class has persisted unabated in the past half century, despite the collapse of Nazism and Communism. In abandoning nature as the standard for political life, the thinkers of the late nineteenth century had turned to race or class as the means of providing an explanation for the historical differences among men and their differing achievements. Furthermore, the newly created social sciences, with the authority of history and biology behind them, were uniform in their insistence that race should become the foundation for the determination of citizenship. However much racial theories came to be discredited in the twentieth century, the theoretical ground—the philosophy of History—upon which the defense of race and class had been established, was never discredited or abandoned.

  As a result, it has not been possible to reestablish the protection of the equal rights of citizenship on the ground of an understanding of the principle of equality—as an abstract truth derived from nature. It was that understanding of natural right that had been abandoned as the foundation of citizenship by the Progressives. Thus, it has become clear in light of what occurred in the wake of the passage of the Civil Rights Act of 1964 and the Immigration and Nationality Act of 1965 that the rights and duties of citizenship, and their enforcement in the courts and bureaucracies, could only be understood on the basis of the Progressive understanding of history and the acceptance of the moral authority of the administrative state.

  In practice, therefore, the policies promulgated in the bureaucracies and courts relating to the rights of citizenship have become meaningful only with reference to the state, or group identity. And groups can be understood in an intelligible way only through the categories derived from race, class, ethnicity, or gender. The result was not a return to the principle of equality—of individual rights—but a new kind of group equality, which would seek to reverse the old hierarchies (white—or male—dominance, economic class privilege, or racial preference).

  Furthermore, when politicians attempt to make prudential arguments concerning immigration policy or civil rights policy on the basis of individual rights—which run counter to the contemporary historicist meaning of group rights—they are considered racist. It becomes impossible, in a practical way, to defend the equal rights of all individuals without reference to race or social status. Ironically, the political defense of the equal rights of individuals, a genuinely nonracist position, becomes vulnerable to the charge of racism precisely because it does not take race, class, or social status, into account. Thus, it is not surprising that politicians are unwilling or unable to make a compelling defense of the equal rights of individual citizens.

  There is a deeper reason for the failure to reestablish the ground of citizenship on the principle of equality as the foundation of the social compact. Such a defense would require an understanding of natural right. But, the modern state itself and the problems of immigration and citizenship have been understood only in terms of a philosophy of History. In the final analysis, perhaps, Hannah Arendt was right when she insisted, speaking about race and class, that “free public opinion has adopted them to such an extent that not only intellectuals but great masses of people will no longer accept a presentation of past or present facts that is not in agreement with either of these views.”74 In the absence of an understanding of natural right, History may be intelligible only on the ground of race or class, or some similar variation of historical consciousness derived from the Progressive understanding of the meaning of freedom.

  8

  Politics, Rhetoric, and Legitimacy: The Role of Bureaucracy in the Watergate Affair

  IT HAS BEEN MORE THAN A DECADE and a half since the Watergate scandal resulted in the forced resignation of a president of the United States.1 There have been mi
llions of words spoken and written about the events surrounding one of the most important political scandals in American history. The Watergate affair has been called many things: “a second-rate burglary,” a “political crime in high places,” a “constitutional crisis,” and a consequence of “the imperial presidency.” Watergate has had a continuing influence on the politics surrounding the institutional tension between Congress and the president. It brought to light the collision course upon which Congress and the president were embarking in the aftermath of the Vietnam War by testing the legitimacy of the use of presidential power and putting an end to the overblown rhetoric concerning “the imperial presidency.”

  Rarely has a political crisis arisen in the interim without someone in authority insisting that the “lessons” of Watergate should not be forgotten. The passage of time, however, has not resulted in greater clarity concerning what it is we should have learned from the event, perhaps because we still lack an authoritative account of it. But the meaning of Watergate has continued importance, if only because the prevailing opinion concerning what transpired then largely has determined what was politically possible subsequently. The passion generated by the politics surrounding Watergate has long inhibited a dispassionate analysis of the forces responsible for it. It is only in recent times that historical distance has provided the conditions, and the calm, that can shed new light on what is now an old political controversy.

  In the broadest sense, the issues of Watergate involved the question of legitimacy concerning the use of power in national politics. In the American constitutional system, power resides in separate political institutions that depend on different constituencies to guarantee the autonomy of the respective branches of government. The separation of powers ensures that the political institutions have the incentive and opportunity to exercise power in dealing with the various normal problems of government, not to mention the extraordinary contingencies that sometimes arise.

  Power, however, does not confer legitimacy. In claiming the right to use power, the president or Congress can cite the authority of the Constitution, or the people, to legitimize the claim. Where constitutional authority is unclear, politicians have attempted to legitimize the use of power by virtue of authority of the people. In doing so, public opinion becomes decisive in determining whether the people support a claim to power in their name. The formal participation of the people and the ratification of the acts of its representatives take place in the voting booth, but elections do not clarify every important political question. The same electorate that elects a president has, in its various parts, also elected the legislature, the majority of which may be of a different party.

  The claim to legitimacy by election necessitates clarity concerning what it is the electorate has consented to. Watergate, an institutional crisis as opposed to a legal one, pitted the president and Congress against each other in terms of controlling the permanent government, or the bureaucracy. The president claimed the legitimacy of a partisan presidential election as justification for the use of power that could have resulted in fundamental changes in direction and control of the federal bureaucracy. Congress denied that the 1972 election contained any such mandate. Moreover, it denied the president’s claim to derive moral authority to lead the country, rather than merely administer the government, as a result of a principled, partisan appeal to a national majority in a national election. The Democrats, instead, insisted that a majority in both houses of Congress constituted a mandate to resist a change that would undermine many of the most important programs created during the New Deal and the Great Society. Since Watergate, executive leadership responsive to the will of a national majority has been weakened: bureaucratic or centralized administrative rule, compatible with organized interests and a diversified legislature, has become almost institutionalized.

  In institutional terms, the bureaucracy played a far more important role in Watergate than is commonly admitted. It is not of great importance what individual bureaucrats did or did not do in particular cases. Rather, the bureaucracy as a whole held the key to the balance of power between the political branches. During the Nixon years, it became clear that Congress and the president both had a stake in controlling the bureaucracy. As Douglas Yates subsequently observed, “presidential reaction to the problem of bureaucratic control may well have reached its high-water mark in the Nixon administration.”2 The presence of the bureaucracy—largely the creation of a partisan majority—had become the key to the decline of partisanship in the United States. The superiority of the Democratic Party at the congressional and state level, coupled with the acceptance of the legitimacy of the goals of the New Deal and Great Society as the ultimate consensus by politicians (not to mention intellectuals), helped create a disjunction between presidential electoral politics and politics at other levels. As John Wettergreen noted,

  Parties as national electoral organizations must decline out of disuse in proportion to the rise of a national, centralized bureaucracy as the chief instrument of government (“conflict resolution”) and the chief governmental source of private or local benefits. Agencies are the new, stabilizing “political structures” for the resolution of social conflicts. Therefore, disjunction between particular private or local interests, which are administered to individually and not legislated for nationally, and the national or public interest, which is articulated by presidents or aspiring presidents, is likely to continue.3

  Consequently, the rise of the bureaucracy furthered the demise of the principle of majority rule by denying the element of consent. The national majority has access to the national government primarily through the institution of the presidency. The weakening of the presidency could not but have an adverse impact on the power of the national majority.

  The consequence of bureaucratization has been an increased tension between the executive and the legislative, regardless of party, and, increasing apathy among voters. This is so because most important political decisions are made in Washington by a centralized administration not accountable to the elected chief executive. Moreover, the interest of the legislature is closely allied with—and committed to the perpetuation of—an executive bureaucracy. Thus, the bureaucracy, ostensibly nonpartisan, will retain effective power when backed by Congress. Walter Dean Burnham has commented on the effect of this phenomenon:

  as party erodes both in the electorate and in the House, divergence in the electoral coalitions of President and Congress increasingly reinforce the separation of powers; incumbents tend increasingly to be protected or insulated.… The responsiveness of the representational system to electoral change declines; and abstention from the polls become the largest mass movement of our time.4

  It seems unlikely, however, that the separation of powers is reinforced or even sustained. More likely, it is undermined to the extent that the president is unable to control the administration and change the direction of government to conform with the demands of new majorities. Rather, the president, like the party, is rendered nearly impotent, the symbol of an impotent majority. In the absence of crisis, and without the necessity of a majority consensus, administrative rule replaces political rule.

  The institutional or political quarrel between the branches was settled decisively in the wake of Watergate. Congress prevented presidential use of power in a direction it opposed. But the battle to shape public opinion could not end, nor could a new consensus be forged concerning the use of power without the animating force of a national majority. Watergate attempted to restore a new political and institutional balance between the branches. More accurately, it sought to achieve a new equilibrium—wherein both branches could have access to the bureaucracy—but none could rule it in a unified manner. In such circumstances, the bureaucratic-legislative interests could resist the political force of the majority and its representative, the president.

  The imbalance in the second Nixon term, which precipitated the Watergate crisis, resulted from Nixon’s unwillingness to recognize the neutrali
ty of the bureaucracy. His attack on the governmental bureaucracy constituted an implicit repudiation of the Progressive view legitimized by the New Deal, and made operative in the Great Society, that government could be an “engine of compassion.” It appeared to be Nixon’s view that the presence of a nonpartisan bureaucracy had resulted in a distortion of the principle of representation. It had prevented the majority from ruling. The purpose of his policy of decentralization and executive reorganization—the heart of the New American Revolution—was to restore a representative government.

  Those opposed to Nixon sought to retain a centralized administration and attempted to continue the tradition of consensus politics that every president, regardless of party, had adhered to since the New Deal. The Democratic Party, though firmly in control of the legislature, appeared unable to make a principled appeal of sufficient moral authority to animate a national majority. It was unable to win the presidency. However, it was increasingly able—largely as a result of nonpartisan appeals, that is, as ombudsmen—to ensure that incumbent congressmen would not be defeated. With continued control of the central political branch of government, the Democratic leadership had the institutional means to dominate the bureaucracy in its interest. With regard to public opinion, however, it remained merely a powerful faction. Unable to mobilize a national majority, it lacked the moral authority to govern. More simply, the people had not, and apparently would not, consent to its rule. Subsequently, it became clear to the congressional leadership that it could not allow a president to govern, regardless of his electoral mandate, who sought to destroy the structure that maintained its power. Republicans, too, in Congress were alarmed by what they perceived to be the growing institutional imbalance between the branches. Consequently, Republicans in the legislature did not support the president on partisan grounds. The perceived institutional imbalance threatened not only the prerogatives of Congress as a body but those benefits that make incumbency so advantageous to individual members. Hence, Watergate was not a partisan affair in the ordinary sense, nor was it simply a legal controversy. Rather, it was an institutional struggle between the political branches of government. Such an event could not but be political.