The present abuse of executive power through and with the administrative state has been generously prepared over many decades.
Peggy Noonan recently suggested that “elites are often the last to see their system is under siege. ‘It couldn’t be, I’ve done so well.’” There is much to this idea, especially in a nation like America where many are, in fact, doing very well, and are often socially isolated from others who are not doing so well. Near zero interest rates have flooded the stock market with money, and that, among other things, has been good for the wealthy. Outside of that, however, things are tougher, and not only economically. Because Americans are increasingly isolated socially and economically, our governing class often has trouble seeing this reality.
Our system was supposed to be designed to ensure regular contact between elites and the common citizen. Unfortunately the modern American state, by making our government less democratic has made it less responsive to the people. At the same time, it has made our governing class less aware of the needs, hopes, and fears of the average citizen.
One important source of the problem is the modern American state. It is often said that we Americans have a “presidential system,” and that is contrasted with a “parliamentary system.” It might, however, make more sense to hold that we Americans have, or had, a “senatorial system.” In other words, what has set the U.S. Constitution apart from other constitutions across the globe has been the presence of an upper house, in addition to an independent, unitary executive. Having a second house in the legislature was controversial in the founding era. In England, the upper house was the House of Lords.
But the United States had no aristocrats. What, then, was the upper house for? It was to moderate the views of the House. In Federalist 63, Madison put it this way: “how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? “ Unfortunately, that role is now played, or at least attempted, by our administrators. Being in the permanent bureaucracy, their main contact is with other elites, lobbyists, and activists, and not the common man in the street. It was supposed to be otherwise.
In the introduction to his Defence of the Constitutions Adams noted that “It is become a kind of fashion among writers, to admit, as a maxim, that if you could be always sure of a wise, active, and virtuous prince, monarchy would be the best of governments.” Yet, he argued, even “the best and wisest prince,” perhaps especially the best and wisest prince, would not wish to rule alone. His government would have:
A senate consisting of all that is most noble, wealthy, and able in the nation, with a right to counsel the crown at all times, is a check to ministers, and a security against abuses, such as a body of nobles who never meet, and have no such right, can never supply. Another assembly, composed of representatives chosen by the people in all parts, gives free access to the whole nation, and communicates all its wants, knowledge, projects, and wishes to government; it excites emulation among all classes, removes complaints, redresses grievances, affords opportunities of exertion to genius, though in obscurity, and gives full scope to all the faculties of man; it opens a passage for every speculation to the legislature, to administration, and to the public; it gives a universal energy to the human character, in every part of the state, such as never can be obtained in a monarchy.
Pace Adams, even a benevolent dictator, perhaps especially a truly benevolent dictator, would wish to have a Senate and House to ensure that he knew what the people’s thoughts and needs were, in addition to having wisdom readily at hand to respond to those thoughts and needs, and to guide them. That argument should give fans of the Chinese model pause.
In a well-ordered government, the aristocracy (“elite” would be our preferred term) employs its wisdom in service of the people, not in service of itself. How does the system do this? Two ways. In part, it makes the democratic element direct and explicit in one house. The lower house, being the most democratic, is designed to ensure that the people’s wants and needs are directly on the agenda. Hence a well-designed lower house “should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them,” Adams wrote in “Thoughts on Government,” his popular 1776 pamphlet. The upper house would have to be aware of and take the people’s wishes into account if they wished to get any bill through. Beyond that, as Adams notes, even a king, at least one who genuinely wanted to do right by his people, would realize that he needed the other two houses to inform, refine, and moderate public opinion.
The second way that the elites would be nudged (to use a 21st century term for the “checks and balances of republican government”), was via their ambitions. To further their ambitions, the elites in the Senate would have to get a majority of the lower house on board, which would, in turn, force them to do something of genuine service to the republic. In Federalist 51, Madison famously wrote, “Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place.” Madison was discussing the checks among the branches of the legislature. Writing roughly a year before Madison, Adams applied that logic to the different houses of the legislature (plus the executive with a veto) as well. “Orders of men, watching and balancing each other, are the only security; power must be opposed to power, and interest to interest.”
In the 20th century, Progressives and their successors in the New Deal took direct aim at that model. By creating an administrative bureaucracy, staffed with credentialed, elite experts, with appointments for life, and to whom the authority to write and interpret most of our legal code was delegated, the legislature was diminished in importance. Moreover, the Senate’s crucial functions that Adams articulated of refining opinion and offering service to the House were undermined and overshadowed by a permanent rulemaking body. Hence the concerns of the average voter grew to be divorced from the concerns of the people who actually write our legal code. In our time, this division is reaching a crisis point, as the current election season seems to demonstrate.
The increase of authority concentrated in Washington, D.C. further exacerbates this problem. The more that is done in Washington, especially through the ministrations of the regulatory state, the less easy it is for the laws to accommodate the diverse ways of life that exist across our extended republic. In this case, once again, the ability actually to make the laws under which we citizens live is taken from the people we elect in our states, cities, and towns, and given to an unelected elite in Washington, and, with them, their enforcers across the Union. Hence this government serves the “new class,” and not the American people as a whole.
To see just how far removed our laws are from the legislative process consider some examples. The FCC’s recent “net neutrality” ruling relies upon the 1996 Communications Act for its claim of authority. Yet that act, when it passed, was not designed to regulate the Internet, as the Supreme Court recognized as recently as 2005. Fast forward a few years, the bureaucrats really want to regulate the Internet, and yet Congress will not explicitly give them that authority. Hence they simply claim that they, in fact, do have that authority under the 1996 Act. We see the same process at work in the EPA’s claim to be able to regulate greenhouse gasses, and in other like cases across the government. So much for the democratic process, and so much for keeping our governing class and we the people connected.
Finally, note that Adams speaks of how this system “excites emulation among all classes” and “gives a universal energy to the human character, in every part of the state, such as never can be obtained in a monarchy.” By giving the common man a real say in our system of government, it draws them in. Just as, Adams thought, working with the representatives of the common men in the House would force ambitious senators to serve the public, so too did Adams think that having the ability to influence their “betters” would invest the common citizen in the system, and fire his ambition to serve at his own level, moderating his own views in the service of the general good. In other words, Adams thought such a structure of government was the best way to ensure that the new republic would be a functioning middle-class democracy.
By removing so much government from the regular democratic process, the modern administrative state rejects that process, and the result is twofold: out-of-touch elites, and immoderate common voters. Adding powers to Washington is not the path most likely to solve these problems.