The mistake that the Supreme Court makes is to presume that the answer to this specific question must be found in the Constitution.
Americans are worried about the economy and jobs, about national security and safety from terrorism, about securing healthcare, about their children’s education. Lately I haven’t heard too many people talking about the problem of separation of powers. In fact, besides John Marini, Christopher DeMuth, Jonathan Turley, and a few other scholars and policy wonks, I haven’t heard anybody mention separation of powers as a topic of vital public concern.
Separation of powers is a little like the catcher in baseball—seldom the headliner, often forgotten by the casual fan but never by the pros who really know the game. (Like “Chooch” Ruiz of the Phillies, a great catcher and one of the most indispensable players on the team; but as part of the defense, he was never the center of attention like hitters such as Ryan Howard or Chase Utley.)
The U.S. Constitution does not contain the words “separation of powers” or “checks and balances.” Prior to the addition of a bill of rights, it didn’t even contain the words “freedom” or “rights.” This doesn’t mean that the Constitution neglected these principles; indeed, it is a document that cannot be understood except in light of its purpose to secure freedom and equal rights for all. To accomplish this, the Founders believed, the government must be limited in its scope, and this requires the separation of powers and accompanying checks and balances. Like catchers in baseball, these principles may not be the constitutional headliners but they are integral to the successful working of free government. Pull them from the game, and liberty loses its key defensive players.
Of the American Founders, James Madison is most known for advocating and elucidating the doctrine of separation of powers. If the powers of government are not separated and checked, Madison argued in The Federalist, all power will accumulate in the same hands, “whether of one, a few, or many,” and this is the “very definition of tyranny.”
This is precisely what has been occurring in America politics with the rise of the administrative state. Constituted by a huge, unelected and virtually unchecked bureaucracy that sits atop the two houses of Congress—and even perhaps atop the office of the presidency and everything else in Washington—the administrative state is like Mr. Bear Squash-You-All-Flat, who sits on and destroys the houses of smaller animals in the forest.
Most critics of the administrative state agree on the problem: bureaucratic government is fundamentally inconsistent with the rule of law and the safeguarding of individual rights and liberties. Yet this bureaucracy has amassed a colossal extent of power in the United States, both politically and psychologically. When did this begin? How did it happen, what are the essential causes? Is there a remedy, and if so, of what does it consist?
There is no consensus among the critics of the administrative state on the answers to these questions. Must we despair, then, of rescue from this cold gray spirit that permeates our society, and which, according to Max Weber, will ultimately lead to a “polar night of icy darkness”?
Marini, more than many critics of the administrative state, has emphasized how Congress has abdicated its responsibility to legislate. Since the Progressive Era in particular, Congress—including members of both major political parties—has gradually and willingly handed power over to the bureaucracy, thereby undermining its constitutional responsibilities and severely damaging the nexus between the sovereign people and their elected representatives.
For many years now, Marini’s writings have led the way for others to contribute to the important critical work of assessing modern administrative government. As Marini lays out in his Liberty Forum essay and elsewhere, the 20th century Progressive movement, and especially its tutelage under Woodrow Wilson, sought to establish rationalized, administrative government in America, which Wilson and his followers fully understood meant destroying the Madisonian apparatus of separation of powers and its concomitant system of checks and balances.
Marini’s point is not only that constitutional government cannot be restored without restoring the practice of separation of powers, but that separation of powers cannot be restored unless Congress reclaims its primary task of legislating for the American public. This would require a sea-change in attitude for many congressmen and women, who for years now have been complicit with the other two branches in undermining the separation of powers on behalf of the advancement of the administrative state. As such, although Marini is not without hope, his sanguinity is probably more guarded than even the cautious Christopher DeMuth (see his 2015 Liberty Forum essay), and certainly less enthusiastic than the populist buoyancy expressed by Charles Murray in his latest work, By the People: Rebuilding Liberty Without Permission.
DeMuth may well be correct to argue that educational, economic, and technological improvements have increased the demand for a greater degree and range of government policymaking, at the same time that government’s ability to meet these demands has grown. When this is combined with the decline in congressional hierarchies that once disciplined and set practical limits on legislators’ practicable policy horizons, it is not surprising to witness the advent and growth of specialized legislation that substantially expands the scope and reach of government into the lives of individual citizens, business, and society. Further, according to DeMuth, technological advances, particularly in the realm of communications, have combined with the secularization and atomization of morality, society, and politics in such a way as to transform Americans’ expectations to demand results that the executive power is prepared to deliver, and which puts legislative representative institutions at a substantial disadvantage.
This has led to an unchecked executive and a corrupt, unresponsive government whose defects are largely responsible for the election of Donald Trump and the upheaval that may ultimately result in a revival of constitutionalism and return to the practice of separation of powers.
How are we to understand this view of the American people, whose expectations and ethos have created demands that have resulted in increased executive power and marked growth in administrative apparatus and regulation, but who will soon demand of their elected representatives that they tame the bureaucracy and reestablish the legislature’s representative task and constitutional purpose?
DeMuth’s analysis seems to leave open the question of whether “the people” are the victims or the perpetuators of the administrative state (whereas By the People leaves no doubt that Charles Murray considers them the victims). Marini does not call upon DeMuth to explain this seeming incongruence in his description of the character of the American people, but Marini does differentiate between the special interests and centralized media which have spurred increased administrative regulations, on the one hand, and the American electorate who voted for Trump, on the other. The notion of the people as a check upon the undue expansion of governmental power is quintessentially Madisonian.
Madison’s conception of separation of powers as the fence of liberty was directly taken from the Baron de Montesquieu’s treatment of this subject in his magisterial work, The Spirit of Laws (1748). Madison understood Montesquieu to teach that the security of liberty depends on separating and checking the primary powers of government; this requires juxtaposing the interests and ambitions of government officials in order to achieve governmental equilibrium, thereby safeguarding the liberty of the constitution and protecting the rights of individuals. At the Constitutional Convention of 1787, Madison, as well as many other delegates, worked to incorporate Montesquieu’s principle of separation of powers into the fabric of the U.S. Constitution, and while the doctrine is never mentioned by name in the document, it is integral to its design of limited government.
Madison agreed with Montesquieu’s view that separation of powers is the primary defensive measure to ensure the liberty of the constitution and the rule of law, but he also went substantially beyond Montesquieu in regard to this prudential device: he envisioned separation of powers as a positive means to promote the formation of a deliberate and just public opinion. For Madison, the invention of prudence of separation of powers was more than a tool to prevent tyrannical government; it contributes to a design of institutional arrangements that promote the refinement and enlargement of the public views on the basis of justice and the general good. The latter is of critical importance to Madison because separation of powers is an auxiliary means to control the government; a “dependence on the people” constitutes the primary control (Federalist 51).
For James Madison, the idea of a ruling authority in America must be derived from the people themselves. There can be no specialized rationalistic replacement for the people themselves; there is no substitute for the spirit that “animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government” (Federalist 39). From the Madisonian perspective, the substitution of the administrative state is anti-republican; it is rule by a minority, and it is tantamount to giving up on government of and by the people.
John Marini’s emphasis on the roots of the theory of rationalized, administrative government in the Progressive Era is critical to understanding the profound depth of this problem. Indeed, the effects of bureaucratic bloat reach far beyond an increase in rules and procedures, paperwork, and pestering bureaucrats, The rise of the administrative state means, ultimately, the slow and painful death of the American experiment in freedom and self-government.
There is no doubt that Marini is correct that the dismantling—the deconstruction, if you will—of the administrative state will require something akin to a Herculean effort and substantial reconfiguration of political alliances in America. The degree of boldness, courage, and sustained commitment this would necessitate—from political leaders and ordinary citizens alike—is hard to imagine, and even harder to believe will come to pass. It will depend, in the final analysis, on whether the spirit of “liberty for all” still sufficiently stirs in the hearts and animates the hopes of the American people.
 That is until, during one of Mr. Bear’s tyrannical escapades, the lower branch of a tree hits him on the head and he runs out of town, never to return again. It seems to me that Morell Gipson’s imaginative children’s book is also a clever, thinly veiled story about the squash-effect of the administrative state. For adults at present, however, the question whether the lower branch (as closest to the people) deserves the heroic status that the author awards it, has not yet been answered.