The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.
This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.
The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”I think the concern about deference is misplaced. Properly construed, even deferential judicial review gives effect to important public law values, such as the rule of law and good administration.
It is undoubtedly the case, however, that the willingness of the U.S. courts to hide behind doctrines of justiciability (political questions, standing, etc) to avoid interfering with a wide range of policy choices made by administrative agencies means that judicial oversight is less rigorous than it might otherwise be. This, I think, has knock-on consequences for the administrative state. If courts are not ensuring respect for public law values, the legitimacy of the administrative state is reduced. That is not to say that judicial review is the only, or even necessarily the best, means of legitimacy. Indeed, for a host of practical reasons, large swathes of administrative action will inevitably never be subject to judicial oversight. Nevertheless, for the judiciary to remove itself from large areas of administrative decision-making is decidedly unhelpful.
But that is really a side-bar. The administrative state is here to stay. The issue then becomes how to ensure that it acts with rationality, fairness and respect for democracy. All branches of government, civil society organizations, ordinary citizens and government employees can play a constructive role. Legislative and executive oversight is important, as is oversight within and across agencies. Civil society organizations often have the resources and expertise to engage productively with the "fourth branch". Ordinary citizens interact with administrative decision-makers, but can also give feedback to elected officials, administrators and their fellow citizens. And government employees, on the front lines, bear a special responsibility to ensure that administrative decisions are taken in a rational and fair way which respects the mandate of the decision-maker and the interests of those affected.
Turley's conclusion is, accordingly, unduly dark:
In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding. We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.The tenor of Heather Gerken's comment, made in the context of a recent short article on federalism (The Federalis(m) Society), is more appropriate:
So, too, if you worry about the growth of the Fourth Branch shouldn’t you be thinking creatively about the ways that states can play the same role inside federal administration as they now play outside of it? Think of it as the administrative safeguards of federalism. If you care about state power, it is far better to have the administrative safeguards of federalism in play as the federal empire expands. You can, of course, continue to insist that the federal empire ought to be radically trimmed. Good luck with that.More can always be done. But supposing that we ever teeter on the brink of disaster with only politicians to haul us back from the edge greatly oversimplifies matters.
UPDATE: a reader suggests that this complaint is reminiscent of Lord Hewart's tirade against the growing administrative state in The New Despotism. Indeed it is! Colin Scott made a similar point on Twitter. I have to say, though, I find that The New Despotism reads reasonably well to the modern eye. Much of Lord Hewart's ire was directed towards attempts to shelter the administrative state from judicial review, by means of ouster clauses, conclusive evidence clauses and the like. Modern judicial review doctrine (elsewhere than in the United States, that is) evidences a very skeptical attitude to attempts to oust judicial control. The administrative state will not be rolled back, but its operation can be improved and, in part, improvement can be achieved by the tools of administrative law.