By Charles C. W. Cooke
Monday, December 28, 2015
If the passage of time were a reliable guarantor of
increasing human freedom, we would expect history to look a little different
than it does. In school, we would have learned that the Englishmen of Charles
I’s reign were better off than their Elizabethan grandparents; that the
colonists implicated by the Declaratory Act had fairer prospects than those who
had been governed with what Burke called “salutary neglect”; that the Germans
of 1935 possessed an advantage over those of the Bismarcksche Reichsverfassung. That we did not learn any of this
should tell us something. As Thomas Jefferson had it, “the natural progress of
things is for liberty to yield, and government to gain ground.” There are no
new fights in politics.
Do we know this? In the United States, as in the rest of
the Anglosphere, we seem to believe that we are the children of legislatures,
not of kings; the beneficiaries of careful reasoning, not of iron will; the
heirs to a safe political settlement immune to disintegration. That we are
proud of our institutions is understandable. But our unshakeable confidence in
their permanence is not. There is nothing written in the stars that secures in
perpetuity our free system of laws. There are no stone tablets upon which
legislative supremacy and judicial integrity are guaranteed against usurpation.
Men’s hearts are no less ambitious this week than they were in the era of the
pyramids.
As I write, the president of the United States is openly
promising to finish off his second term with a flurry of extraconstitutional
activity. By the power invested in his “pen and phone,” Barack Obama intends to
wield his “executive authority” in order to institute a set of environmental
rules that the people’s representatives have declined to grant him; to close
the prison camp at Guantanamo Bay in direct defiance of Congress’s will; and to
further circumvent a series of immigration laws that have been on the books for
decades.
These are no idle threats. In his second term alone, this
president has rewritten by fiat some of the central portions of his signature
legislation, Obamacare; granted a series of unauthorized waivers from the 1996
Welfare Reform Act; and instructed agencies such as the IRS and the EPA to push
forward with the enforcement of a series of administrative rules that simply
cannot be justified by the texts of their enabling statutes. Most alarmingly of
all, he has repeatedly made it clear that these actions are not the natural
outworking of legal ambiguity, but a deliberate response to congressional
inaction. Once upon a time, Obama insisted that he was “not a king” or an
“emperor” or a “dictator,” and confirmed that his “job as the head of the
executive branch ultimately is to carry out the law.” Now he justifies his
behavior with talk of necessity and vows that if “Congress won’t act,” he will.
John Adams characterized the office that Obama holds as
enjoying “the whole executive power, after divesting it of those badges of
domination called prerogatives.” In this assessment he was reflecting what
might be regarded as the Founders’ central conceit: that when the laws that
govern men’s fortunes are subject to the whims of the powerful rather than to
the consent of the governed, there can be no liberty. Are we at liberty?
In his recent book Is
Administrative Law Unlawful? Columbia University professor Philip Hamburger
suggests that we are not. The Constitution of the United States, Hamburger
contends, represented a conscious attempt to banish from this country’s
political structure a host of the insidious tools upon which monarchs and
emperors had historically relied: among them prerogative lawmaking, legislative
enabling acts, suspending and dispensing powers, and the investment of
legislative, judicial, and executive functions into one body. Alarmingly,
Hamburger concludes, these features have gradually found their way back into
the system — not because the Constitution has been overthrown or because
Washington, D.C., has been occupied by an invading force, but because over time
we have constructed an unwarranted “fourth branch” in addition to the original
three, and we have allowed the executive branch to take advantage of it.
By “fourth branch,” Hamburger is referring to the vast
caste of unelected government employees who staff the array of administrative
agencies that have sprung up around the country since the start of the 20th
century and, slowly but surely, enjoyed ever-increasing power over our lives.
Far from reflecting a benign, novel, and necessary change in the detail of our
self-government, Hamburger submits, these entities are returning us to the bad
old days of rule by fiat. Unlike the Prussians and the French, he argues,
Anglo-American societies have historically insisted that the liberties of free
men be restricted only by the legislature and the courts, not by executive
decree. By permitting a vast and unaccountable bureaucracy to grow in their
midst, Americans have reimported into their system a virus against which their
Constitution was supposed to protect them. Worst of all: They have done so
without a care in the world.
Hamburger’s provocative thesis should, at the least,
force us to consider an important question: Why do we tolerate behavior from
our bureaucracy that we would never allow in other circumstances? Imagine, if
you will, that an American citizen were arrested on suspicion of stabbing
somebody and subsequently charged. Ceteris paribus, we would require a number
of conditions to be met in order for his conviction to be acceptable. First, we
would expect the law that he was accused of having broken to be present in a
specific statute that had made its way through the established legislative
process. Second, we would expect the authorities tasked with his prosecution to
be under the jurisdiction of the executive branch and bound by rules that had
been contrived by the legislature and interpreted by the courts. And third, we
would expect him to be given an independent trial overseen by a judge and
decided by a jury of his peers. Anything less would be unacceptable.
If a state legislature attempted to “consolidate” this
process on the grounds of its “complexity,” we would steadfastly object. But
now suppose that instead of being subject to laws that had been passed by the
legislature, enforced by prosecutors from the executive branch, and overseen by
an independent judiciary, our hypothetical suspect were left at the mercy of an
unelected “violence agency” that had been empowered to make binding
determinations as to (a) what constituted “stabbing,” (b) who were guilty of
it, and (c) what their punishments should be. Would we not riot? Not only would the opportunity for abuse be deemed flatly
unacceptable, but we would wonder how exactly it was that a legislature saw fit
to subdelegate to the executive both its own enumerated powers and a set of
judicial functions to which it had no rightful claim.
Why, then, is this not the case elsewhere? Why do we
shrug our shoulders when Congress bestows upon the executive branch extensive
powers to promulgate, enforce, and adjudicate binding rules? Why do we not
revolt when the IRS is given the task of writing its own laws in-house (we used
to call this “prerogative”) and enforcing them outside the courts (we used to
call this “consolidation of power”)? Why is there no great uproar when HHS and
USCIS willfully delay enforcement of unpopular provisions of the law to aid the
president’s reelection bid (we used to call this “suspending”) or hand out
waivers of onerous requirements to favored groups (we used to call this
“dispensing”)?
Most important of all, why are we not up in arms when the
president openly abuses his position as the head of the bureaucracy in order to
circumvent Congress’s explicit will? When even left-wingers such as Georgetown
Law School’s Jonathan Turley are warning that Barack Obama has now become “the
very danger the Constitution was designed to avoid,” should our ears not perk
up? Our Founders’ ancestors in Britain spent centuries trying to rid their
constitutional structures of opportunities for abuse. Why are we so indifferent
to their return?
***
The usual answer given to those who pose this question is
that the contemporary administrative state is rendered inevitable by the
complexities of modern life, and that all principled objections are therefore
rendered moot. Woodrow Wilson, who was openly disdainful toward the American system
of government as it had been handed down to him, made this case repeatedly,
writing as early as 1887 that the “difficulties of governmental action” that
had been seen “gathering in other centuries” were “culminating in our own” and
desperately needed to be addressed. His proposed fix was for Congress to
delegate some of its rule-making powers to the bureaucracy.
For too long, Wilson contended, the state had been bound
by rules that were appropriate for the 1790s but not for his era; it was time
to elevate “administrative study and creation” above traditional notions of
representation and consent. Anticipating the charge that he was coming out
against democracy itself, Wilson struck a defensive pose. “Self-government,” he
argued, “does not consist in having a hand in everything, any more than
housekeeping consists necessarily in cooking dinner with one’s own hands.”
At worst, this reasoning is a throwback to the Roman
civil law that the Founders had abhorred and the Prussians idolized and an
explicit rejection of the anti-dictatorial instincts of Anglo-American
liberalism. Which tyrant, we might ask, does not make a similar case in pursuit
of greater power?
At best, Wilson’s argument is a good-faith but terribly
naïve attempt to make government “work.” When the Supreme Court rules, as it
did in 1989, that in an “increasingly complex society, replete with ever
changing and more technical problems, Congress simply cannot do its job absent
an ability to delegate power under broad general directives,” it is echoing the
contention of men who believed that it was important to take certain questions
out of the political realm so that they might be better answered.
Somewhere within this contention there is a kernel of
truth. If the federal government is to work effectively, at least some delegation will have to be
permitted. But while it is one thing to acknowledge that Congress does not have
the time to engage every small-ball question, it is quite another to endorse
legislators’ filling our laws with endless invitations to executive caprice.
Here, as elsewhere, to accept that occasional exceptions must be granted is by
no means to demolish the rule. There is a difference between a legislature’s
charging the executive with certain narrowly specified tasks and a
legislature’s delegating broad legislative powers to that executive. Slowly but
surely, we have forgotten this.
Today it is evident that promises of apolitical
rule-making have gone unrealized and that delegation of legislative authority
is not the exception but the rule. Worse still, the dream of an impartial,
virtuoso-driven bureaucracy has been cast aside in favor of monarchism. In
2015, the bureaucracy does not exist as a hive of expertise held aside from the
hurly-burly of partisanship and ideology, but as a weapon that is wielded by
the incumbent executive and insulated from congressional pushback. From the
Reagan administration onwards, American presidents have come to use their
control of federal agencies as kings once used their crowns. If a given
commander-in-chief doesn’t like the substance of a given law, he claims that it
is vague and issues a new rule to “fix” it; if his signature legislative
achievement isn’t working so well, he suspends or dispenses with its unpopular
or problematic provisions until the politics improve, regardless of whether the
statute accords him such discretion; if the other branches will not play ball,
he fulfills their roles for them.
Worse, he is aided and abetted in doing so by the very
institutions the Constitution anticipated would stop him. In theory, Congress
should be able to limit the bureaucracy’s potency by repealing or amending its
grants of power and by limiting the types of instances in which it subdelegates
its judgment. In practice, the rise of ideologically unified parties has
rendered this an impossibility. When Congress and the White House are run by
politicians with the same aims, there is little incentive to roll back the
frontiers of executive authority. And when they are not, the dissenters hardly
ever have the votes to override the president’s veto. If Americans wish to
change the status quo, they will need to start electing politicians who are as
committed to protecting the powers of their branch as they are to their agendas
(this will be extremely difficult) and to insist that oversight legislation
such as the REINS Act (which forces Congress to take a vote on especially
expensive regulations) makes it into law.
The judiciary has not helped matters. Under the Chevron doctrine, propounded in 1984,
the Supreme Court has routinely granted federal agencies broad latitude to
interpret Congress’s will, on the presumption that if those agencies abuse or
overextend the power they have been granted, legislators will step in and stop
them. But because legislators have proven themselves incapable of supervising
the administrative archipelago, a power vacuum has emerged into which the
executive has been all too happy to step. Justice Clarence Thomas, who objects
vehemently to the judiciary’s reticence in this realm, charges that his branch
has “overseen and sanctioned the growth of an administrative system that
concentrates the power to make laws and the power to enforce them in the hands
of a vast and unaccountable administrative apparatus that finds no comfortable
home in our constitutional structure.” Chevron
must be overturned.
In our wider political culture, objections such as
Thomas’s tend to be met, if at all, with the counterargument that, because the
United States is a democracy, its administrators can pose no serious threat to
the people. If the bureaucracy were to become egregiously tyrannical, this
argument goes, either the elected president or the elected Congress would act.
That neither has done so must reflect some degree of public satisfaction.
This rejoinder, alas, is a poor one. If, as the American
system presumes, we all have a right to a voice in making the laws that limit
our freedom — and if there is a branch for which we vote that is charged with
determining those laws — it is nothing short of tyrannical for the state to
deny us that right. The United States is a constitutional republic, replete
with a set of rules that govern how power may be wielded and by whom. There
exists no provision within its codified order that ties the power enjoyed by
each branch to that branch’s transient popularity. If there is a constitutional
problem with the scope of the administrative state, it obtains regardless of the
opinion polls. As one would not submit that a president’s 90 percent approval
rating has invested him with the power to change the tax rates or to issue
judicial opinions, so one should not assume that the problems attendant to
administrative overreach evaporate because 51 percent of the public is on
board. If Philip Hamburger is correct to argue that Article I does not permit
any subdelegation of the “legislative powers that have been granted” — and I
think he is — he is correct irrespective of the electorate’s will.
And if Hamburger is wrong, and the Constitution’s silence
on subdelegation should be taken to imply permission? Well, we should still be
concerned. Seductive as it may sound, the claim that the administrative state
is subject to meaningful democratic oversight is in practice rather weak. By
its nature, the modern bureaucracy is a quasi-permanent force, vast swathes of
which remain in operation regardless of who holds elective office and with what
brief. For the administrators’ apologists to contend that our contemporary
rule-makers are legitimate because they were empowered by those who were at one
point elected will simply not cut the mustard. Now, as in Washington’s time, we
write our laws down so that those who are bound by them know what they are
bound by. There is no advantage to our doing so if the men tasked with
enforcing them are permitted to suspend them or to fill out their meaning as
their political desires demand.
Which is all to say that, pace Woodrow Wilson & Co., the recipe for political liberty is
as it ever was. For men to be free, the law must be difficult to change, and it
must be changed only by those whom we send to represent us; it must be
universal and comprehensible in its application; it must be limited in its scope
(by both hard rules and soft conventions); and it must be contrived, executed,
and overseen by parties whose specialized functions are clearly set apart from
one another. These conventions took a long time to develop, and they will take
a long time to forget. But if they are circumvented often and egregiously
enough, forgotten they will eventually be. There is always a crown beyond the
horizon.
No comments:
Post a Comment