Just as Chevron was an iconic decision marking the rise of the administrative state, so its relative decline is also a powerful symbol.
The left-liberal defenders of the modern administrative state cannot help but reveal its inherent tendency to be an engine that moves the nation leftward and resists democratic control. Their fundamental problem is they must acknowledge that their ideal of administrative power does not fit easily within the classic tripartite separation of powers—a separation that tried to slow down change and assure government accountability.
Today the administrative state tugs at the constraints of the separation of powers. Our national government enacts rules without Congress’s specification. Its agency heads, particularly independent agencies, are often only loosely controlled by the President, at least when the Presidents are Republican. And under doctrines that command judicial deference, the judiciary is hampered in its ability to counteract agencies that are not following the best view of the law or the best view of the evidence.
But for many progressives the collapse of the traditional separation of powers into a more undifferentiated administration power is a cause for celebration. They believe that the old tripartite scheme made it difficult for the federal government to pursue a progressive vision of society. But now they contend that America has created a regime that is compatible with that progressive vision while maintaining a balance of power in new form. For instance, in his new book Constitutional Coup: Privatization’s Threat to the American Republic, Jon D. Michael argues that the administrative state is working with an updated version of separation of powers that functions better than the old one:
Specifically, within the administrative arena, agency leaders stood in for the president take on the president’s political agenda- setting role; the tenured, expert civil service acted the part of our independent and largely apolitical federal judiciary, insisting on reason explanations and intra-agency commitment to the rule of law; and the public at large (what I call civil society) re-create Congress’s populist pluralistic, and cacophonic deliberative role, bringing new and diverse opinions and sentiments into the administrative polis.
But this description shows why for professors like Michael that the antidemocratic tendencies and drift toward the left inherent in the administrative state are not a bug, but a feature. Take the “apolitical” civil service that is supposed to replace the judicial function. The median bureaucrat is to the left of the median member of the Democratic party. And when civil servants are unionized, these unions become an electoral mainstay of that party. The judicial power, in contrast, is much more bipartisan, reflecting conscious appointments of Republican as well as Democratic Presidents. And there is substantial scholarship that shows ideological diversity helps keep the judiciary more honest. Moreover, federal judges generally stay judges for life. In contrast, bureaucrats often go through the revolving door, and may be interested in creating more outside options for themselves by crafting regulations which they can help the regulated navigate such regulations.
The public at large has almost no ability to affect administrative regulations and can hardly be equated to the traditional legislative power. The system of notice and comment is a complicated one of which the average citizen knows nothing. What Michael calls civil society are actually interest groups who are expert at influencing the process. Some of these are the classic special interest groups, like unions and trade associations. Other are well organized ideological pressure groups. To be sure these groups have more power than the ordinary citizen even with Congress. But more populist movements at least have some say in the legislative process, and that makes the legislative power a more genuine voice of the people and a greater check on elite progressive opinion that dominates the bureaucracy.
As I have discussed elsewhere, presidents effectively have limited authority over their agency heads because the incentives of most agency heads are to compromise with their bureaucracy. And given that most bureaucrats are left- wing, Republican presidents tend to have less control than Democratic presidents. Agency heads are no substitute for giving force to national political will represented by the President, and independent agencies are expressly designed to make that will difficult to exercise. Only Presidential power over the executive can check the natural tendency of the administrative state to drift left.
Michael’s book is a brief against privatization of government services, going so far as to label privatization a constitutional coup. But it is his defense of the modern administrative state that is a justification for a real coup— dissolving the separation of powers that is at the heart of our original Constitution.