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Taming the Imperial Presidency

Uncle Sam and Executive Order

Going back to the tumultuous reign of Abraham Lincoln, political scientists have long been fascinated with the “Imperial Presidency,” and this interest was heightened further by the executive overreach that characterized the administration of Barack Obama. Some scholars contend that the modern presidency has morphed into a de facto monarchy, wielding power far in excess of what the Framers contemplated in Article II of the Constitution.

But that is only part of the problem. The republican form of government envisioned by the Founding Fathers rested on several essential principles that—unfortunately—became highly attenuated during the 20th century, including robust state sovereignty (federalism), the separation of powers, and the checks and balances inhering in each branch jealously guarding its power from “encroachments” by another. As James Madison memorably stated in Federalist 51, in order to keep the branches in check, “ambition must be made to counteract ambition.” It turns out that all three branches have been overly ambitious—some more than others.

The precise interplay among the three branches of the federal government varies over time, depending on who occupies the White House, the composition of Congress, and the existence of domestic or foreign “crises” demanding government action. Over the past century, however, roughly corresponding with the United States’ entry into World War I and the advent of the Progressive Era, one thing has remained constant: the federal government has consistently grown—in absolute terms and as a percentage of the Gross National Product.

Conversely, during the same period, the standing of the states vis-à-vis the federal government has consistently declined. As a result, the federal government has become a swollen behemoth dwarfing the states—a Leviathan. The sprawling, gargantuan federal bureaucracy barely resembles the structure created at the Philadelphia Convention in 1787. It is hardly surprising that the chief executive of our overgrown national government exercises vast powers, often described as “imperial.” Indeed, the entire regime is “imperial.”

A variety of circumstances contributed to this phenomenon: rapid population growth; ratification of the Sixteenth Amendment (authorizing the federal income tax) and Seventeenth Amendment (replacing the appointment of U.S. senators by state legislatures with popular election); the rise of Progressivism as an ideology; expansion of suffrage; increasing industrialization and urbanization; the influence of organized labor; fluctuating economic conditions; military conflicts and the demands of world leadership; and, ultimately, the triumph of the New Deal and the sweeping constitutional changes that enabled FDR’s alphabet soup of federal agencies and programs. And many other factors, continuing to the present.

Whatever the impetus, the Framers’ original constitutional design was rent asunder when: the U.S. Supreme Court granted Congress unlimited authority to regulate even wholly intrastate commerce in Wickard v. Filburn[1], and greatly diminished state authority through expansive (and dubious) interpretations of the Due Process and Equal Protection clauses of the Fourteenth Amendment; Congress gradually delegated its lawmaking authority to executive branch administrative agencies, most notably with the Administrative Procedure Act of 1946[2]; and the Supreme Court inexplicably abdicated judicial review of agency interpretations and decisions.[3]  As a consequence, administrative agencies now combine the powers of all three branches of government, without checks or balances.

Thus was born the modern administrative state, with the President at the helm, an innovative arrangement that has begun to attract skeptical attention from legal scholars such as Columbia law professor Philip Hamburger, whose influential 2014 book asked, Is Administrative Law Unlawful?

With this background, the latest scholarly examination of executive power, The Imperial Presidency and the Constitution, emerges from a 2015 conference hosted by the American Enterprise Institute. The book, coedited by AEI’s Gary Schmitt, and Claremont McKenna’s Joseph M. Bessette and Andrew E. Busch, collects seven essays by a variety of prominent experts, including Ralph Rossum, James Ceaser, and Adam White.

White describes the historical evolution of cabinet departments overseen directly by the President to early “independent” regulatory commissions (such as the Steamboat Inspection Service, the Interstate Commerce Commission, and the Federal Trade Commission), to the “energetic” executive branch agencies we are most familiar with today. Surprisingly, the major shift in the power and scope of federal agencies—made possible by Congress’ broad delegation of power to them—occurred not during the New Deal, but during a Republican presidency, that of Richard Nixon, and that power and scope continued to wax under succeeding administrations (both liberal and conservative).

In one of the ironies of history, White depicts then-professor Antonin Scalia advocating, in 1981, that administrative agencies flex their muscle to (in White’s words) “pursue Reaganite ends by Rooseveltian means.” The Chevron doctrine was part of the Reagan administration’s reassertion of presidential power over the administrative state—to prevent excessive interference by liberal judges on the D.C. Circuit. As they say, be careful what you wish for, because you might get it. Alas, the presidency changes hands, and with it the awesome power over the myriad regulatory agencies. The concentration of executive control over the administrative state increased during the administrations of Bill Clinton and George W. Bush, creating a “perfect storm” for abuse by the Obama administration, which White summarizes.

How can this be fixed? White candidly acknowledges that the “most straightforward way to reduce the administrative state’s power would be for Congress to do the work of taking delegated powers away from the agencies,” but concludes that this is very unlikely. Congress surrendered its regulatory power precisely to avoid accountability for the resulting regulations. Reclaiming its lawmaking prerogatives would require hard work, eating into congressional recesses and limiting opportunities for fundraising and campaigning for re-election. Congress is content with the status quo.

Fortunately, in recent years the Supreme Court has been rethinking the proper degree of deference to agencies’ interpretations of their own regulations. It is encouraging to see conservative scholars confront the reality of the administrative state and Republican Presidents’ role in creating it. White concludes:

Conservatives may have grown too complacent with the executive branch’s assumption of primary control over the administrative state. . . . Perhaps they should reconsider this presumption about the nature of the administrative state, and break the presumed link between the administrative state and the imperial presidency.

The other contributors to the book offer little hope for a solution. Andrew Rudalevige bemoans an “invisible Congress,” the opposite of what Madison predicted in Federalist 48 and 49. Nature abhors a vacuum, and the executive branch has eagerly filled the space left by Congress’ indecision and inaction.

Professor Rossum points out that the Supreme Court can serve as a backstop for executive overreach. In fact, the Court struck down Obama’s unlawful assertions of power on 40 occasions, often unanimously.  While this type of case-by-case judicial review can serve as a check on a lawless executive, it does not constitute an adequate institutional reform of the administrative state.

Taming the “imperial presidency” will necessitate a return to the constitutional structure designed by the Framers. This will require constraining the federal Leviathan, resuscitating the states, curbing Congress’ commerce clause power, and drastically revising the current “Fourth Branch” of the federal government—the unaccountable bureaucrats who now spew endless quantities of incomprehensible diktats in the Code of Federal Regulations. It has become clear how foolish it was for Congress and the courts to entrust so much power to the executive.

In Federalist 47, Madison stated that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” This is the evil of the administrative state. Correcting it is the issue of our time.

[1] 317 U.S. 111 (1942).

[2] Pub. L. 79-404, 60 Stat. 237, codified at 5 U.S.C. section 500 et seq.

[3] Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134 (1944).

Reader Discussion

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on May 30, 2017 at 09:06:43 am

Mark:

Nice piece!

Interesting info on the 1980's Scalia and "deference to the FAS.

One quibble: Tricky Dick was NOT a conservative (not with wage-price controls, *the Nixon Shock* (overturning Bretton Woods) and the EPA and Affirm Action to name a few).

Interesting side point: The authors demonstrate what may happen when conservatives decide to be judicial activists. It isn't pretty!

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gabe
on May 30, 2017 at 11:48:05 am

And Harry Blackmun! Disparate impact! Busing!

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Mark Pulliam
on May 30, 2017 at 14:46:43 pm

Of course it is beneficial, as Mark Pulliam does here, to refresh our concerns with the Federal Administrative State [FAS] with all its ancillary issues of "Imperial Presidency," delinquent, dilatory legislators shedding responsibilities, and the perversions of relationships necessary for its operations into "Bureaucratic Structures," Etc., Etc.

Given the objectives of the AEI in the publication cited, it will not be demeaning to point out that there is something more, and Much more fundamental to the issues Mark Pulliam points out for us here.

A very terse, shorthand label for that something fundamental can be read as: "The Functions of Government."

We have three basic levels of government, local, state and federal to which our society in its various membership compositions can, and does, assign particular functions to be carried out through the activities and relationships of individuals ("governments" don't do things; individual people do things) using the governmental mechanisms of each of those respective levels. We are well aware that the nature and effectiveness of the relationship of individuals to the functions assigned to each of those three levels differs and diminishes with size and membership.

We are all also, though not as acutely, aware that a greater proportion of functions have been assigned to (or arrogated by) the relationships conducted through the mechanisms of the federal government requiring some forms of "management" or administration. The correlation of the increases in assignments and arrogations of functions at the federal level to the increases in the size, complexity of relationships, and extensions of powers of the FAS makes a conclusion of causality inescapable. Increases in functions, particularly in those functions concerned with relationships and the circumstances in which they occur create increases in requirements for administration of those functions.

How have these assignments and arrogations of functions that have brought about the structure of the FAS come about? Mark Pulliam suggests:

"A variety of circumstances contributed to this phenomenon: rapid population growth; ratification of the Sixteenth Amendment (authorizing the federal income tax) and Seventeenth Amendment (replacing the appointment of U.S. senators by state legislatures with popular election); the rise of Progressivism as an ideology; expansion of suffrage; increasing industrialization and urbanization; the influence of organized labor; fluctuating economic conditions; military conflicts and the demands of world leadership; and, ultimately, the triumph of the New Deal and the sweeping constitutional changes that enabled FDR’s alphabet soup of federal agencies and programs. And many other factors, continuing to the present."

Perhaps we are dealing with something more insidious (although it may be included in Mark's "many other factors, continuing to the present."); and that is a broad public acceptance (often demand) for benefits and ameliorations of burdens & responsibilities that are indeed "continuing to the present."
We currently observe public reactions to proposals for assignments of healthcare functions. We observe the residents of Boston expecting the residents of Provo and Davenport to contribute through federal action to functions for a modern connection between two historic rail terminals. The fault does not lie in the "stars" we elect as presidents (or other high offices) but in ourselves by our assignments of, and demand for, functions and relationships in avoidance of burdens, responsibilities and quests for benefits.

In his most recent work, " Saving Congress from Itself," Judge James L Buckley has proposed steps that would result in reassignment of functions that would have far more effect on the FAS and the ancillary problems Mark Pulliam cites, than all the (so far) futile proposals to reconstruct a constitutional republic in the face of public "hunger" for specific functions.

it may come as a surprise to many, that with the "growth" of the FAS, there has not been a proportional growth of the federal workforce over the recent decades. An entirely different system of relationships has been developed amongst those involved in the operations of the FAS, for the establishment of "policies" and execution of "programs " to meet the continuing "hunger" for specific functions.

Plausible arguments can be made for the "efficiencies and effectiveness" of the conduct of particular functions through the FAS. But those arguments must be weighed in terms of the costs incurred, disruptions of human relationships and impacts on individual liberty.

We might do far better, and make some progress, by working on the problems arising from the assignments, or arrogations, of functions to "governments," rather than concern ourselves primarily with the natural responses of humans handed powers to perform them.

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R Richard Schweitzer
on May 30, 2017 at 16:13:15 pm

There has surely been an increased "demand" for transfers in the past 100 years--what economists call "rent-seeking." It turns out that giving out free stuff is very popular to the recipients.. And nearly impossible to resist on a national scale.

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Mark Pulliam
on May 30, 2017 at 16:54:27 pm

That may be a bit of expansion in understanding the term "Rent Seeking."

http://www.econlib.org/library/Enc/RentSeeking.html

Still, "Rent Seeking" in its defined form does require functions exercised through the mechanism of government by the Administrators, usually facilitated by legislation.

Of course we observe that the "demands" for functions (and their expansions) arise through particular interests, constituencies and political "building" of constituencies.

Real rot occurs from the public acceptance of the arrogation of functions by the operators within the FAS.

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Image of R Richard Schweitzer
R Richard Schweitzer
on May 30, 2017 at 17:24:19 pm

Richard:

What we are observing, or have observed over the course of the last 80 years, more markedly over the last 3-4 decades, is a dramatic change in the culture of this nation defined (now) as an ever expanding number of *individualist* members of various coteries organized around the Federal (State and Municipal) teat. Where past generations were content with loosely defined associations working toward the individual aims of the members without reliance upon the "State", the modern culture now compels strict definitions of needs, *rights* and privileges and a specific focus on and around a defined benefactor - the FAS. Where the former associations were quite cognizant of their obligations, and were content to attain their limited aims WITHOUT reliance upon, as then, unimaginable government functions, modern associations (cabals, anyone?) are quite often organized with the specific purpose of engendering new governmental functions. This is quite a change in the cultural expectations / norms / behaviors (not to mention aspirations and aspirational potential) of the citizenry.

Yet, we also observe that another *cultural* change has taken place, and, sadly, it is continuing at an accelerating pace: It is the change in the culture of the "clerks" - the legions of bureaucratic minions that comprise the FAS. The *clerks*, now credentialed with all manner of certificates attesting to their fluency and expertise in the most mundane / trivial of matters (Pareto outcomes, cost-benefit, "rational basis", etc) are no longer content to "assist" but rather seek dominion over all who fall within their purview. It is their *purpose* to direct, to nudge, to compel their "charges" / wards to an ever more glorious and idyllic future.

While it is true that former cultural transformation may very well be expected in a democratic republic, as Mark suggests, one must recognize that the latter transformation was an inevitable consequence of the former. One should not be surprised that he who seeks, or is disposed to be lead, shall be lead; nor should one be surprised that those who arrogate to themselves the privilege of leadership, (such as it is) shall exercise such leadership bound only by the limits of an as yet NOT fully frustrated populace.

What then, when the checks stop coming? Is there sufficient residual cultural strength / definition to re-cork the genie? Like Greve, I am despondent (see Greve's essay last week).

Ya calls the tune, ya pays the piper, boyos!

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gabe
on May 30, 2017 at 22:19:42 pm

Regardless of how "the culture" came to be changed, or by whom, or with what motivations, we must consider the courses available (to escape disaster or achieve betterments) in terms of "the culture we have."

"We go to war with the Army we have,"

As war shapes an Army, a culture can continue to be shaped. But, we can not stop for diverse efforts to shape the culture first.

Like an army, the culture is made up of many units, of differing capacities, which have to be taken into account.
Success, even survival, may well depend upon carefully considering the effects of the limitations or strengths of those capacities in the selections of alternative courses of action with respect to the future of the FAS.

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R Richard Schweitzer

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.