More Reasons to Doubt that Separation of Powers Can Be Revived

John Marini provides an insightful commentary on Christopher Demuth’s optimistic suggestion that President Trump and the Republican Congress will be able to revive separation of powers and, by so doing, rescue us from an “autopilot government, rife with corruption and seemingly immune to incremental electoral correction” that the administrative state has created. Marini is less optimistic and spells out some of the major obstacles to rejuvenating “the primary practical defender of constitutional government, the separation of powers.”

Marini’s focus here, as in so much of his path-breaking published work, is on pointing out the pernicious consequences of the Progressives’ transformation of the American regime from a decentralized, constitutionally-limited government into a modern, centralized administrative state. The administrative state has vastly augmented the powers of the presidency even as it has vitiated those of the Congress, so much so that Congress no longer plays the role assigned to it under the Constitution’s scheme of separated powers.

As he writes, Congress has “transformed itself from a deliberative, primarily lawmaking, body into a body primarily taken up with oversight of executive agencies.” It relinquished its lawmaking power by delegating significant lawmaking authority to the executive branch bureaucracy. In so doing, it effectively lost the “power to control taxing and spending.” The modern administrative state is now so massive and entrenched that the ability of Congress to reassert its Article I powers and thereby revive separation of powers is problematic at best. Thus the title of his Liberty Forum essay, “Congress in Search of Itself.”

Marini is obviously correct to place most of he blame for this sorry state of affairs on the Progressives. Their contempt for separation of powers—and for the Constitution more generally—was evident in Woodrow Wilson’s 1912 book, The New Freedom: A Call for the Emancipation of the Generous Energies of a People. The Founding charter’s structural provisions, insisted Wilson, evinced a mechanistic theory of politics that had been superseded by modern theory. It “was founded,” he wrote, “on the law of gravitation. The government was to exist to move by virtue of the efficacy of ‘checks and balances.’” The trouble with that theory was that

government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.

The Constitution had to evolve: Where once it protected liberty through its limited grants of power to the federal government, federalism, and separation of powers, it must now wield unlimited power to resolve social and economic problems through the organized knowledge and rulemaking and regulatory powers of the administrative state.

The threat to separation of powers, however, predates the Progressives. It can be traced to the Framers themselves. In Federalist 51, James Madison famously observed that

the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

I defer to no one in my respect for the Framers, but their confidence that separation of powers would be secured and encroachments on congressional power be successfully checked by the “personal motives” and “ambition” of the members of Congress was misplaced.

No one understood this better than Patrick Henry. In the Virginia Ratifying Convention, he pointed out what he considered the Framers’ failings.

To me it appears that there is no check in [the proposed] Government. . . . Tell me not of checks on paper; but tell me of checks founded on self-love. The English Government is founded on self-love. This powerful irresistible stimulus of self-love has saved that Government. It has interposed that hereditary nobility between the King and Commons. If the House of Lords assists or permits the King to overturn the liberties of the people, the same tyranny will destroy them; they will therefore keep the balance in the democratic branch. Suppose they see the Commons encroach upon the King; self-love, that great energetic check, will call upon them to interpose: For, if the King be destroyed, their destruction must speedily follow. Here is a consideration which prevails, in my mind, to pronounce the British Government, superior in this respect to any Government that ever was in any country. Compare this with your Congressional checks [based, as Madison described them, on “personal motive” and “ambition”]. Have you a resting place like the British Government? Where is the rock of your salvation? The real rock of political salvation is self-love perpetuated from age to age in every human breast, and manifested in every action.

For Henry, the check on government was self-love based on being a member of a class—in the British case, on being a nobleman in the House of Lords. By contrast, for Madison, the check on government was the personal motives and ambition of members of Congress to protect the “constitutional rights” of their branch of government.

The United States did not have classes of citizens as did England, but it would soon have political parties, unanticipated by the Framers, generating the same kind of self-love.  Think how much more powerful today is the self-love of Democratic or Republican loyalists to advance the ideology, policy preferences, and power of their parties than their self-interest in protecting congressional prerogatives from the bureaucratic encroachments of the administrative state.

Republicans in Congress willingly acquiesced in actions by George W. Bush to establish what his critics called the Unitary Executive, only to be shamelessly outdone by Democrats in Congress enthusiastically endorsing Barack Obama’s decision to use his phone and pen to do what Congress had refused or been unable to do. After all, members of Congress are Republicans or Democrats for a much longer period of time than they are members of Congress. Their loyalties are to their party, not to “the constitutional rights of their place.” In Henry’s words, the Framers mistakenly relied on “checks on paper.”

The Framers’ failure to anticipate the emergence of political parties and the power of the loyalty  of members of Congress to those parties has had a profound impact on our Constitution in ways quite apart from the emergence of the administrative state. It  led directly to the adoption and ratification of the Twelfth and Seventeenth Amendments.

Under the original procedure for the Electoral College, as provided in Article II, Section 1, Clause 3 of the Constitution, each elector could vote for two persons. The person receiving the greatest number of votes, provided that number equaled a majority of the electors, was elected President, and the person receiving the second greatest number of votes was elected Vice President. The election of 1800, however, revealed a defect in the original formula when each member of the Electoral College voted along party lines, resulting in a tie between the two candidates from the Democratic Republican Party, Thomas Jefferson and Aaron Burr.

The emergence of partisan political activity caused the failure of the original constitutional plan and necessitated the adoption of new rules under which electors would now cast two “dedicated” votes, one vote for President and another for Vice President. The Twelfth Amendment, adopting these new rules, was passed by Congress on December 9, 1803 and was ratified by three-fourths of the state legislatures on June 15, 1804— making it the most quickly ratified amendment until the Twenty-Sixth Amendment, which was ratified in a mere three months and eight days in 1971.

Article I, Section 3 of the Constitution provided the election of U.S. senators by the state legislatures. However, it did not provide, in the words of Joseph Story,

for the manner, in which the choice shall be made by the state legislatures, whether by a joint, or a concurrent vote; the latter is, where both branches form one assembly, and give a united vote numerically; the former is, where each branch gives a separate and independent vote.

What follows is a simplification of a  complex history, but most states moved toward joint votes, and, with the emergence of political parties, it often occurred that one party would control the state assembly or house and another the state senate. This introduced the opportunity for deadlock.

To give some examples:

In 1885, the Oregon legislature failed, after 68 ballots, to elect a senator and eventually did so only in a special session. Two years later, West Virginia failed to elect anyone. In 1892, Louisiana failed to elect a senator. In 1893, the legislatures in Montana, Washington, and Wyoming deadlocked and failed to elect senators, whereupon the Governors of these states filled the vacancies by appointment, only to have the Senate deny them their seats on the grounds that only the state legislatures could elect senators. Kentucky failed to elect a senator in 1896; Oregon in 1997; California, Utah, and Pennsylvania in 1899; Rhode Island in 1907; and Colorado in 1911. Deadlock was perhaps most evident and embarrassing in Delaware; it was represented by only one senator in three Congresses and was without any representation at all from 1901 to 1903.

From 1885 to 1912 alone, there were 71 such legislative deadlocks, resulting in 17 senate seats going unfilled for an entire legislative session or more. These protracted deadlocks had several ill effects: They often led to the election of “the darkest of the dark horse” candidates; occasionally deprived the affected states of representation in the Senate;  always consumed a great deal of state legislative time that was therefore not spent on other important state matters; and powerfully served to rally the proponents of direct election of the Senate. Eventually, the direct-election advocates  prevailed,  with the adoption of the Seventeenth Amendment by Congress on May 17, 1912, and its ratification by the states on April 8, 1913—making it the third most quickly ratified amendment.

Marini expresses particular disappointment that the U.S. Supreme Court, rather than protecting separation of powers as defined by the Constitution, has instead facilitated  the establishment of the administrative state. Its opinion in Humphrey’s Executor v. United States (1935) was particularly egregious in that it affirmed the power of Congress to create quasi-legislative, quasi-judicial agencies within the executive branch largely free from presidential control. Put another way, it authorized agencies technically within the executive branch to exercise substantially non-executive functions.

In a much-quoted article in the Harvard Law Review, Boston University Law Professor Gary Lawson describes the Federal Trade Commission in a way that perfectly captures the Court’s failure to protect separation of powers and to prevent “the accumulation of all powers, legislative, executive, and judiciary, in the same hands”—what Federalist 47 said “may justly be pronounced the very definition of tyranny.” He writes:

The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. The Commission adjudication can either take place before the full Commission or before a semi-autonomous administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission.[1]

Even Justice Antonin Scalia, perhaps the Supreme Court’s greatest defender of the Constitution’s separation of powers,[2] was inattentive to the ravages that the administrative state wreaked on the structural provisions of the document. In 1984, two years before Scalia’s elevation to the Court, it announced in Chevron U.S.A. v. National Resources Defense Council (1984) what has come to be known as Chevron deference: the doctrine that courts will defer to an administrative agency’s reasonable interpretation of the ambiguous terms of a statute that it administers.

Once on the Court, Scalia readily embraced Chevron deference. He saw no separation of powers problem, attributing “an ambiguity in a statute committed to agency implementation” to the fact that “Congress had no particular intent on the subject, but meant to leave its resolution to the agency.”[3] A decade later, in Auer v. Robbins (1997), he actually expanded the doctrine to include deference to an agency’s interpretations of its own regulations.

However, late in his service on the Court, Scalia began to appreciate the devastating effects of the administrative state on separation of powers. In 2011, he was ready to overturn his opinion in Auer. In Talk America v. Michigan Bell Telephone Company, he declared in a concurring opinion:

While I have in the past uncritically accepted . . . [Auer], I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary—indeed, an a fortiori application—of the rule that we will defer to an agency’s interpretation of the statute it is charged with implementing, see Chevron. But it is not.

He explained why not:

When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implementation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s meaning. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well.” (Emphasis in original.)

Scalia observed that “deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power to enact vague statutes; the vagueness effectively cedes power to the Executive.” By contrast, however, “deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.” He concluded by noting that “we have not been asked to reconsider Auer in the present cases. When we are, I will be receptive to doing so.”

In his 2015 concurrence in Perez v. Mortgage Bankers Association, Scalia was even more emphatic:

I would . . . restore the balance originally struck by the APA [Administrative Procedure Act] with respect to an agency’s interpretation of its own regulations, not by rewriting the Act in order to make up for Auer, but by abandoning Auer and applying the Act as written. The agency is free to interpret its own regulations with or without notice and comment; but courts will decide—with no deference to the agency—whether that interpretation is correct.

At this point Scalia went further still, suggesting that it was time as well to consider abandoning Chevron:

By supplementing the APA with judge-made doctrines of deference, we have revolutionized the import of interpretive rules’ exemption from notice-and-comment rulemaking. Agencies may now use these rules not just to advise the public, but also to bind them.

His solution: “The problem is . . . perhaps insoluble if Chevron is not to be uprooted.”

Scalia’s untimely death likely dashes any hope that the Supreme Court may help revive separation of powers any time soon.[4] Marini’s somber assessment and critique of the Court is well-founded.

[1] Gary Lawson, “The Rise and Rise of the Administrative State,” Harvard Law Review 107 (1994), 1248.

[2] See the new Afterword to the paperback edition of Ralph A. Rossum, Antonin Scalia’s Jurisprudence: Text and Tradition (University Press of Kansas, 2016).

[3] Scalia, “Judicial Deference to Administrative Interpretations of the Law,” Duke Law Journal 1989 (June 1989), 511, 516.

[4] For several years, Judge Neil Gorsuch of the U.  S. Court of Appeals for the Tenth Circuit has expressed profound reservations about Chevron. If Gorsuch is confirmed to fill the Scalia seat, there will be less reason to despair.