Second Thoughts on a Fourth Branch

This past April, I was vaxxed by INOVA, a large and nominally non-profit, non-governmental health care system in Northern Virginia. I expected the worst, yet my two Pfizer rounds made for an uplifting experience. The lines moved so fast, Usain Bolt couldn’t keep up. The hundreds of nurses, volunteers, National Guard personnel on site were all helpful and competent. Vaccinators and thousands of vaccinees were in absurdly high spirits. It had the feel of a rock concert.

It’s worth thinking about what it took to pull that off. The pharma guys had to invent and the feds had to approve vaccines, both at warp speed. The Commonwealth of Virginia had to provide rules for the exercise and call up the Guard. Fairfax County had to find a suitable facility and a set-up that wouldn’t cause traffic chaos. INOVA had to mobilize its staff and recruit volunteers. They all had to work hand-in-glove; and they did. It’s astounding what can be accomplished in this country with a sharp sense of public purpose and a good deal of civic spirit.

In a way, the fact that it takes a horrid pandemic to accomplish such a feat is actually good news. We do not want a regime that declares emergencies once a week and then mobilizes or hectors accordingly: just think of what such “all-of-government” endeavors could do with climate change derangement and implicit bias education. But we do want a system of public administration that in ordinary times operates with tolerable efficiency, public-spiritedness, and liberal justice. We do not have that. Restoring it will take more than institutional tinkering or throwing the bums out at the next election. It will take bold constitutional thinking and institutional innovation. So argues Professor Brian J. Cook, author of The Fourth Branch: Reconstructing the Administrative State for the Commercial Republic. He’s right, although not quite in the right way.

Rise of the Administrative State

The author is professor emeritus of public administration and public policy at Virginia Tech. Unlike professors of lit crit, wellness, or law, members of Cook’s disciplines are rarely crazy but almost always boring. This, however, is a thought-provoking book by a serious scholar and citizen, about serious questions of our public life. It is mercifully free from academic jargon and, a few slips aside, from polemics.

Professor Cook seeks to rehabilitate and re-legitimize administrative institutions as a fourth constitutional branch—not necessarily as a matter of formal constitutional arrangements, but as an institutional reality reflected in public acceptance and recognition. The author acknowledges that his enterprise sails into strong headwinds, including the constitutional formalism that appears ascendant in the legal academy and the Supreme Court. However, he largely bypasses the formal-legal debate. Refreshingly, he confronts the administrative state question at the level of institutional design and political economy. 

Like it or not, administrative institutions dominate our politics. In Professor Cook’s words, they are the “primary frontier of contact” between the state and private actors, foremost including business. The interaction between the state and the market is the key question of liberal government. In a “commercial republic” that conjoins liberal government, a vibrant associational life, and a market economy, those relations are symbiotic. Government cannot commandeer private enterprises; it needs them to deliver the prosperity we all want. In turn, businesses have strong incentives to seek inducements and special favors. The management of that mutual dependence is a central constitutional design problem, and public administration is a big piece of the puzzle.

Over most of our history, Professor Cook writes, we managed the interface tolerably well. Of late, however, the administrative state has been hopelessly intertwined with powerful interests. The results are rising inequality; public cynicism and demoralization; and a grasping, deeply politicized, executive-dominated government.

Just as one fears yet another harangue about the one-percenters and the candy-colored clown they called the Prez, the author grounds his analysis in the Founders’ understanding of the nascent republic’s political economy. Professor Cook characterizes his own understanding as neo-Madisonian, with a strong Hamiltonian streak. His concerns over our interest-dominated government explicitly echo Madison’s shockingly modern-sounding worries over a “mutable government” in Federalist 62. Hamilton shared that concern, and the two Founders agreed that the country could not last if it were to end up with a political economy like Europe’s; but they proposed different safeguards. The mechanistic-seeming elements of Madison’s thought—the extended republic and large electoral districts—were calculated to attract large landed property owners to the public councils, as a way of inducing stability, public-spiritedness, deliberation, and a refinement and enlargement of the public’s views. Hamilton did not deem that strategy viable. As Secretary of the Treasury, he sought to tie more dynamic, monied interests to the national government. But he also viewed the “learned professions” (foremost, lawyers like himself) as a distinct, stabilizing class. And he envisioned, and in fact created in embryonic form, a system of national administration that would be separate from the President’s raw will—administrative institutions with some degree of legally sanctioned autonomy and independent judgment that would attract men of modest means but professional bearing, by way of extended tenures and adequate pay.

Part I of The Fourth Branch provides an erudite exposition of how the Founders’ central questions—how to identify a social basis for a bold experiment in constitutional government; how to make it endure; how to erect institutions to that end—have shaped our country’s history. Nation-building, Professor Cook rightly notes, always implicated state-market relations, and from the beginning, there was a national administration with developmental and regulatory functions to promote markets and enforce standards of private behavior. After a full century, that improvised “first” administrative state gradually gave way to a “second” administrative state—more nationalized, more centralized, far bigger in scope and authority, and more professionalized and more fully bureaucratic. The author attributes that development principally to the emergence of large corporations and of finance capitalism. Economic consolidation, he writes, prompted a commensurate consolidation state-side.

Relations between the administrative state and market actors run both ways: with increased regulation come greater corporate inducements and capabilities to offload entrepreneurial risk onto the administrative apparatus. The classic illustration of this dynamic is the “public utility model” that we adopted not just for natural monopolies but also for telecommunications, airlines, and other industries. 

Administrative legitimation under these conditions required a separation of administration from politics—some way of ensuring that expert administrators were promoting, or at least seen to be promoting, the public interest in a liberal commercial order, as distinct from doing favors for politically valuable interests. That idea, embodied by “independent” agencies and the Administrative Procedure Act, was never really plausible—and it did not last. Presidential government, among other factors, always ensured that administrators would register political preferences. The agitation over “captured” agencies, beginning in the 1960s, reflected those concerns and, in short order, helped to produce a tide of “social” regulation and, along with it, broad changes in administrative law and organization. But those reforms merely exacerbated administrative fragmentation and provided further opportunities for corporate maneuvering. International competition further undermined the foundations of a corporate-liberal working constitution. For the past decades, we have witnessed the ascent of a “neoliberal” order marked by “austerity, privatization, deregulation, and tax cuts for the highest income earners.” Those trends have been accompanied by a “hollowing out and constitutional delegitimation of the administrative state.”

Part II of the book discusses ways and means of rehabilitating and re-legitimating an administrative state. Mere tinkering with the established order, Professor Cook insists, is not enough; the crisis is too severe for reforms that might not survive the next election. Nor does Professor Cook have confidence in proposals to “cut the market and the state loose from one another.” Formal constitutionalism of the Philip Hamburger/Gary Lawson variety, he writes in a brief paragraph, is “a complete dead end theoretically and practically.” Instead, we should “alter constitutional politics by creating incentives and empowering administrators to make lawmaking, including policy implementation, more deliberative and thus more likely to give concrete meaning to the public interest.” To that end, we should recalibrate the separation of powers. One imperative is to erect safeguards against excessive presidential interference. A second is “to provide administration with a resource distinct from business influence, organized interest support, and technical expertise.” (Professor Cook is never quite clear about the nature of that “resource”; I’ll come back to that point below.)

The Administrative Branch

Professor Cook presents general precepts that might lay a foundation for a Fourth Branch, vested with “the administrative power” and supplied by Congress with fully adequate resources and authority. That Branch, not the President, would be entrusted with the faithful execution of the laws; the Executive’s role would center on foreign relations, defense, and closely related matters. Within the administrative branch, presidential nomination and Senate advice and consent would be limited to principal officers; and even those officers would be removable by the President only upon a public showing of good cause. Everyone else would operate under the rules that now govern the civil service. Finally, adjudication would be separated wholly from administration and committed to independent courts.

I have read enough James Buchanan, and seen enough scams, to share Professor Cook’s assessment that the vast expansion of supposedly public-interested legislation in the 1970s only exacerbated the problem: when everything is up for grabs, even a nominally neutral administrative process will favor the powerful and well-connected.

Of course, this program is wildly unrealistic. But that is also true of the Hamburger-Lawson program to reverse the New Deal and even of far more modest, common-sense reforms. I share Professor Cook’s hope that a moment of crisis is also a moment of opportunity—at least of an opportunity to think seriously. What, then, do we think of The Fourth Branch program?

Put aside Professor Cook’s proposal to transfer much of what is now agency adjudication to independent courts: there is nothing peculiarly Fourth Branch-ish about it. It has been advanced by such diehard constitutional formalists as Michael Rappaport, Gary Lawson, and Steve Calabresi—and by yours truly. The proposal has broad intellectual appeal because it makes total sense. For that same reason, it is probably stillborn.

What of the remainder of Professor Cook’s program? To the extent that he seeks to transcend the prevailing, narrowly formalistic administrative state debate and to re-ground it in political economy and small-c constitutionalism, I am wholly supportive. If his book pushes the broader debate in that direction, it will have made a significant, salutary contribution. I do wonder, though, whether Professor Cook has thought with sufficient rigor about the political, economic, and institutional context within which the administrative state operates (it is not an independent actor or variable), or about the ramifications of his proposals.

Professor Cook’s principal concern is the relation between the administrative state and powerful economic interests. His fear that that relationship might become a racket is entirely legitimate; and I have read enough James Buchanan, and seen enough scams, to share Professor Cook’s assessment that the vast expansion of supposedly public-interested legislation in the 1970s only exacerbated the problem: when everything is up for grabs, even a nominally neutral administrative process will favor the powerful and well-connected. But that isn’t the whole truth. Our massive Civil Rights State, which hounds the Little Sisters and issues transgender guidances for elementary schools, isn’t a product of corporate power. And when some bird wants to build its nest where you want to build a house on what is technically your property and the bird wins—that cannot be a corporatist cabal, either.

As Chris DeMuth has argued forcefully and convincingly, administrative agencies may best be thought of not (as in days of yore) as just the forum where we negotiate between the state and dominant market actors, but rather as an array of political ecosystems, each with its own culture, rules, and power constellations. And while administrative agencies have incentives to heed powerful political demands, they also have incentives to chase down every rabbit hole. One or the other propensity may induce public cynicism, inequity, and illiberal government. Professor Cook attends to one set of risks but not the other. That will not do.

Further, in his attempt to legitimate a Fourth Branch, Professor Cook has surprisingly little to say about the actual Branches One and Two. (Branch Three is almost entirely absent from his account.) Public and academic misgivings about the administrative state have rightly focused on Congress as a principal culprit—on its inability to deliberate, to legislate meaningfully, and to oversee agencies. That sensible orientation pushes the debate in the direction of congressional selection and organization—campaign finance, primaries, committee structure, staffing, and so forth. Professor Cook mentions none of it. Instead, his program provides that “Congress is mandated” to provide the Fourth Branch with powers and resources of its own. That, frankly, is not the way the world works. The written Constitution provides that Congress shall . . . have a bunch of powers, but no meaningful obligation to do anything beyond convening at specified times. And no alternative Constitution can compel Congress to do that which neither it nor its constituents have any inclination to do.

Comparable difficulties attend Professor Cook’s view of the Presidency. I share wholeheartedly his apprehension about the accretion of executive power. However, his proposal to commit the faithful execution of the laws to an independent Fourth Branch leaves me yet more anxious. There is something to Professor Cook’s observation that the advantages of a unitary executive—energy, secrecy, dispatch—apply most forcefully in the conduct of foreign affairs and defense. Law enforcement, by contrast, requires—beyond energy—publicity, steadiness, and regularity. (This may help to explain why the formal Constitution couches the Commander-in-Chief power as a power and the faithful execution of the laws as a duty.) But an independent, effectively unremovable attorney general? Our real-world experience with independent counsels was not an unqualified success.

Try another riff on the same theme: by all accounts, the most professional, formally insulated institution in our system, with fiscal resources all its own, is the Federal Reserve. And yet, it may be the most distributionist agency and the most dependent on financial institutions—the social sector which Professor Cook, with good reason, is most nervous about. The Fed’s explicit policy is to manage expectations and beliefs—not yours or mine, but the Wall Street barons’ who live and thrive on wild asset inflation. As a bourgeois with assets, I’m totally in favor, for now. As a citoyen, I am close to alarmed. If you want to see government-produced social inequity in action, the Fed would be a fine example.

To generalize the concern: there’s no way of escaping partisan or class politics. It is possible that a constitutionalized Fourth Branch might “fortify a positive relationship between public administration and civil society.” It might consist of highly professional, judicious public servants, immune to corruption and political shenanigans. When God appoints someone to a public office, a German proverb has it, He also gives that person good sense. Wem Gott ein Amt gibt, dem gibt er auch Verstand. But even the late Professor Hegel, that supposed avatar of a bureaucratic class and political regime, cited that proverb as a joke. Even and perhaps especially the best-organized, most insulated civil service will tend to attract certain types of people—the risk-averse; idealists with a wildly inflated sense of what government can realistically accomplish; folks who like lording it over their fellow-citizens; brown-nosers; schemers who maximize post-governmental employment opportunities. All that before labor unions and party politics enter the equation.

I am open—much more open than my formalist-constitutional friends—to appeals to administrative professionalism as an antidote to our grimly politicized public life. I am also open to Professor Cook’s proposition that we have a Fourth Branch of government in any event; so we might as well think seriously and constitutionally about it. And yet, Professor Cook, among us Madisonians: our constitutional arrangements are founded on a certain premise of distrust; a concern over what sorts of people might end up in our public councils; and serious reflection upon the potential of the abuse of the powers conferred upon said people. It is very important to not have distrust deteriorate into raw cynicism. It is equally important, however, to hang on to the premise—and to apply it to a Fourth Branch, if there is to be one.