Unmasking the Administrative State

by John Marini

  Like the Founders, Reagan understood human nature to be unchanging—and thus tyranny, like selfishness, to be a problem coeval with human life. Experience had taught the Founders to regard those who govern with the same degree of suspicion as those who are governed—equally subject to selfish or tyrannical opinions, passions, and interests. Consequently, they did not attempt to mandate the good society or social justice by legislation, because they doubted that it was humanly possible to do so. Rather they attempted to create a free society, in which the people themselves could determine the conditions necessary for the good life. By establishing a constitutional government of limited power, they placed their trust in the people.

  Up or Down, Not Right or Left

  The political debate in America today is often portrayed as being between Progressives (or the political left) and Reactionaries (or the political right), the former working for change on behalf of a glorious future and the latter resisting that change. Reagan denied these labels because they are based on the idea that human nature can be transformed such that government can bring about a perfect society. In his 1964 speech, he noted:

  You and I are told increasingly that we have to choose between a left or right. Well I would like to suggest that there is no such thing as a left or right. There is only an up or down—up to man’s age-old dream, the ultimate in individual freedom consistent with law and order, or down to the ant heap of totalitarianism. And regardless of their sincerity, their humanitarian motives, those who would trade our freedom for security have embarked on this downward course.

  In light of the differences between the ideas and policies of Roosevelt and Reagan, it is not surprising that political debates today are so bitter. Indeed, they resemble the religious quarrels that once convulsed Western society. The Progressive defenders of the bureaucratic state see government as the source of benevolence, the moral embodiment of the collective desire to bring about social justice as a practical reality. They believe that only mean-spirited Reactionaries can object to a government whose purpose is to bring about this good end. Defenders of the older constitutionalism, meanwhile, see the bureaucratic state as increasingly tyrannical and destructive of inalienable rights.

  Ironically, the American regime was the first to solve the problem of religion in politics. Religion, too, had sought to establish the just or good society—the city of God—upon earth. But as the Founders knew, this attempt had simply led to various forms of clerical tyranny. Under the American Constitution, individuals would have religious liberty, but churches would not have the power to enforce their claims on behalf of the good life. Today, with the replacement of limited-government constitutionalism by an administrative state, we see the emergence of a new form of elite, seeking to establish a new form of perfect justice. But as the Founders and Reagan understood, in the absence of angels governing men, or men becoming angels, limited government remains the most reasonable and just form of human government.

  12

  Theories of the Legislature: The Changing Character of the American Congress

  Congress in the Theories of Self-Government

  The first day of April 1989 marked the two-hundredth anniversary of the first meeting of the United States Congress. In the long history of that body, Congress has been the object of countless jokes, and a good deal of scorn, which was aptly summed up in Mark Twain’s comment that Congress is America’s only “distinctly criminal class.” If recent public opinion polls are any indication of the current status of this central institution of American government, Congress has been held in “contempt” by the American public.1 Nonetheless, individual members of Congress continue to be held in high regard and have become increasingly immune from defeat at the polls.

  The ambivalence concerning generally hostile perceptions of Congress as a body, and a favorable public attitude in regard to individual members, has led one observer to conclude, “there is not one Congress but two.” Roger Davidson pointed out that “One of these two entities is Congress as an institution.… It is Congress, the lawmaking and policy-determining body.… It is Congress acting as a collegial body, performing its constitutional duties and deliberating legislative issues.” The second Congress, he regards as “the Congress of 535 … individual senators and representatives. They possess diverse backgrounds and follow varied paths to win office. Their electoral fortunes depend not upon what Congress produces as an institution but upon the support and goodwill of voters hundreds or thousands of miles away.”2

  Why does the American public, on the one hand, scorn the institution that serves collectively as the representative body of the people, and on the other hand, often admire and vote for the individual member? Why do we observe, with increasing regularity, individual candidates for Congress—including incumbents—who run for national office by running against Congress as an institution?3 Perhaps the reason for this is to be seen in the fact that, as Morris Fiorina has observed, “the individual members can achieve their primary goals independently of (and even in opposition to) the ends for which the institution was created.” If this is the case, Fiorina was perhaps correct when he insisted that a primary objective in contemporary government is to “harmonize the desires of the individual member for re-election and the integrity of the institution as a democratic, policymaking assembly.” He suggested that a solution “involves making the fate of individual members more dependent on institutional performance and less dependent on their personal efforts.”4

  There is little doubt that the growth of a centralized bureaucracy has contributed to the difficulty of reconciling the conflicting demands and interests of members of Congress with those of the institution of Congress itself. What is good for the member is not necessarily good for the body as a whole, let alone the nation. However, any attempt to explain this apparent paradox must consider the inherent tension, which exists within a large or diverse liberal republic, between the public and private spheres, or the state and society. This tension provides a basis for the distinction between local and national interests, or the private as opposed to the public good. In the past, the private and parochial interests of citizens were most often administered at the local and state level, or in society, in the economic marketplace. At that level, it was possible to resolve, in a satisfactory manner, the differences implicit in the distinction between the public and private, the general and particular, or the governing as opposed to the administrative elements of a regime. The nation was characteristically governed on the basis of general principles; it was both governed and administered at the state and local level.

  The secret to successful reconciliation of the differences involved in the public and private spheres lay in the decentralized character of the American regime. Prior to bureaucratization, Congress as an institution was held to the standard of governing in the national or general interest. After centralization, individual congressmen were judged by their ability to satisfy the private interests of their constituents. Political centralization thus undermined a crucial ingredient of liberal democracy, what Tocqueville called “local institutions” or “provincial liberties.” It also blurred the distinction, crucial to liberal societies, between the public and private, or the state and society. The devitalization of local institutions, which made the distinction between the general and particular politically unintelligible, also made it practically impossible to achieve a reasonable reconciliation of those respective interests. As Tocqueville noted, “when the central administration claims completely to replace the free concurrence of those primarily concerned, it is deceiving itself, or trying to deceive you.” This is so, he suggests, because, “a central power, however enlightened and wise one imagines it to be, can never alone see to all the details of the life of a great nation. It cannot do so because such a task exceeds human strength. When it attempts unaided to create and operate so much complicated machinery, it must be satisfied with very imperfect results or exhaust itself in futile efforts.”5

  The distinction
between the public and private, or the general and particular, is best observed, in a practical way, by focusing on the difference between governing and administering. This difference, articulated and made practically intelligible by Tocqueville, requires recognition of two kinds of political activity, or rule. John Wettergreen has elaborated this point. “The one is proper to personal or parochial interests,” he observes, “and the other to general or national interests.” Unlike contemporary students of politics or public administration, who see administration as synonymous with “execution.” Tocqueville insisted that “both kinds of political activity are characterized by deliberation or lawmaking, by adjudication, and by execution.” Consequently, as Wettergreen indicates, “Tocqueville refuses to reduce the one kind of politics to the other, not because private interests and the national interest are often involved with one another, but because he supposes that the principle of administrative authority is radically distinct from the principle of governmental authority. Administrative authority is personal or partial, not to say partisan; it is rooted in the personal attachments of kinship, friendship, and neighborliness. Governmental authority is impersonal or general, not to say nonpartisan: it proceeds from general ideas or universal truths (e.g., “that all men are created equal”).6 As a result, Wettergreen maintains, “administrative excellence is something more than ‘prompt and salutary execution of the laws,’ because administration involves more than enforcement of laws. It involves, above all, the sound judgment of particulars.”7

  Alexander Hamilton recognized the inherent difficulty in distinguishing the governing and administrative function, and the necessity of careful delineation of the administrative sphere. In Federalist 72, he observed that “the administration of government, in its largest sense, comprehends all the operation of the body politic, whether legislative, executive, or judiciary; but in its most usual and perhaps precise signification, it is limited to executive details, and falls peculiarly within the province of the executive department.” What are those particular things which “constitute what seems to be most properly understood by the administration of government,” and therefore should fall under the province of the “chief magistrate,” according to Hamilton? They are “the actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public money in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the direction of the operations of war.” In Hamilton’s view, these are all details of administration, and executive in nature. Moreover, as Wettergreen makes clear, these “distinctly administrative actions of our national government cannot be ordered by law (if for no other reason than that they require secrecy). More importantly, administration of the law itself cannot be ordered by law: the executive must be left free to decide which law to enforce first, and even, sometimes, whether to enforce the law at all; no law can change this circumstance.”8

  It was precisely because of the requirement that administration must be concerned with particular details that Tocqueville believed it impossible for a great nation to wholly centralize administration in a way that is compatible with the preservation of local liberties, and the distinction of the public and private sphere, or government and society. Wettergreen has examined and clarified this important point in Tocqueville’s work. He noted, “if humans could think like the Deity, seeing both universals and particulars at once, then both government and administration could and ought to be centralized. In that case, humans could govern themselves and the world providentially, providing for the general or public interest and the private or particular interests—at one stroke and in a perfectly harmonious manner.” However, he suggests, “given the limits of the human moral and intellectual capacities, Tocqueville concluded that it would be desirable to establish one political order—government—with authority over humans insofar as they are alike or similar, and many other distinct political orders—decentralized administrations—to rule men insofar as they are different.”9

  Until recently, the American regime was centrally governed but administratively decentralized. In the period between 1965 and 1975, Congress created a bureaucracy capable of centrally administering the details of American life. Many congressmen objected to the fact that the political function of Congress as a body was changed by its increased preoccupation with the administrative process. Representative Gillis Long (D-LA) complained: “we (Congress) were turning ours from an institution that was supposed to be a broad policymaking institution with respect to the problems of the country and its relationship to the world, into merely a city council that overlooks the running of the store every day.”10 Such objections were ineffectual and short-lived. Subsequently, after several years of experience, Congress came to prefer administration and regulation to legislation. The growth in size and the centralization of the administrative and regulatory bureaucracy only serve to confirm this fundamental change. In the period 1970–1974, Wettergreen wrote, “not only did the number of commercial regulatory agencies increase from fifty to seventy-two, but also thirty-five of those fifty established agencies were substantially reformed. For the first time, agencies with ‘economy-wide’ (in fact, ‘society-wide’) purview and vast administrative discretion were established.”11

  Indeed since 1975, the characteristic activity of the central government has become the regulation or the administration of the details of the social, political, and economic life of the nation. Such a development could not but strengthen the organized interests and their ties with the legislature, as well as the judiciary, at the price of executive control of the details of administration. As Seidman and Gilmour have suggested, the courts, too, have developed an important role in administrative decision-making and execution. They have observed:

  Perhaps the most important consequence of the growth of the regulatory state is the increasing involvement of the courts in administrative decision making and execution. Up to now public administration literature and theories have almost totally ignored the role of the judicial branch. This is no longer possible when substantially less than 10 percent of the federal budget is spent on domestic programs performed directly by federal employees and the lion’s share of federal programs are administered by independent third parties through grants, contracts, and transfer payments. Such arrangements not only invite litigation, but since disputes among parties in these relationships cannot be resolved authoritatively within the executive branch, they virtually command a litigation strategy by third parties and their supporting interest associations as vital means of dealing effectively with federal monitors, rule makers, and enforcers. In addition, Congress has added commands of its own in the form of direct requirements for public participation in the judicial review of administrative decision making and appropriations for attorneys’ fee awards. Once judges accepted the appropriateness of their courts as sites for the resolution of such disputes, they became significant, sometimes the most significant actors in the administrative process.12

  Moreover, the expansion of federal governmental power in this period was not merely accomplished through creation of public agencies but the proliferation of government-sponsored enterprises that are privately controlled, the so-called twilight zone bodies. The links between the public and private sector were forged and maintained through the growth of state budgets and increased control over economic and social relations. Nonetheless, public growth could not be calculated simply by looking at the size of state budgets. Public authority consisted of more than public expenditures or tax subsidies, not to mention regulatory power. Government could and did provide loan guarantees and other means by which certain public or even private enterprises were provided the opportunity to obligate the Treasury. In response to the passage of the Congressional Budget and Impoundment Control Act of 1974, these so-called “off-budget” expenditures could be excluded from the official budget process and the necessity of annual appropriations.

  As Seidman and Gilmour have indica
ted: “off-budget agencies are not covered by the new Congressional process and they are not included in the aggregate or functional amounts set forth in the Congressional budget resolutions.” Those programs or off-budget agencies, such as the Federal Financing Bank, Pension Benefit Guaranty Corporation, Synthetic Fuels Corporation, to name only a few, have grown tremendously in a short time. “The excluded outlays of government-sponsored enterprises have jumped from relatively small amounts in the 1960s to an estimated $44.3 billion for 1985.”13 Such expenditures are not harmful merely because they have increased the scope and power of the central government, or because they may constitute less efficient use of economic resources. They obscure responsibility and distort important distinctions in liberal governments. Seidman and Gilmour have suggested that

  labeling as “private” what is in reality “public” for cosmetic reasons or to obtain fictitious budget reductions can contribute to loss of faith in our democratic institutions.… Distinctions between what is public and what is private are becoming increasingly blurred, but we cannot abandon these distinctions altogether without fundamental alterations in our constitutional system. The maintenance of this distinction has been considered essential both to protect private rights from intrusion by the government and to prevent usurpation of government power.14

  Bureaucratic regulation is a kind of administration most impervious to the maintenance of a constitutional separation of powers and most destructive of control of the “details of administration” by the political executive. Moreover, unlike the political branches of government, regulatory agencies are explicitly prevented from attempting to deliberate in a comprehensive manner concerning the public good. As Wettergreen has stated: “what defines each branch is the comprehensiveness of its public functions. All three branches have comprehensive functions, in the sense that they, unlike any agency, act for the whole nation.… No administrative agency, whether independent or dependent, performs any function comprehensively.”15 Furthermore, the status of the regulatory agencies, in their relation to the chief executive, was changed after 1973. Seidman and Gilmour observed,