Reining In the Fourth Branch of Government Charles Lipson
https://www.realclearpolitics.com/articles/2022/07
The Constitution provides for three branches of government, sharing sovereign power. In fact, we have a fourth branch, the sprawling administrative bureaucracies. They are nominally part of the Executive Branch, which struggles to control them. Congress struggles, too, and now spends much of its time trying to oversee them. The oversight is spotty and the bureaucracies are often left to their own devices, free to write their own rules on even the most important issues.
Last week’s Supreme Court decision took an important step to rein in these bureaucracies. It ruled the regulations for carbon dioxide emissions, written and enforced by the Environmental Protection Agency, went well beyond the vague laws passed by Congress.
Most comments about the court’s opinion have emphasized two likely consequences of the ruling, both important. One, highlighted by the left and especially by climate activists, is that the ruling could lead to more CO2 pollution. Indeed, it undoubtedly will do so unless Congress acts. The second, underscored by conservatives and the right, is that the courts are finally trying to constrain Washington’s vast, centralized “regulatory state,” which they see as fundamentally undemocratic and a threat to our constitutionally guaranteed liberties and our right to govern ourselves through elected representatives.
This debate goes to the very heart of how we as Americans rule ourselves. The left sees Washington’s administrative apparatus as “rule by experts,” essential for controlling a technologically complex society. Their preference is for the modern equivalent of Plato’s philosopher-kings, people who understand the population’s needs far better than the people themselves.
Conservatives (and populists) place no faith in philosopher-kings and certainly not in mid-level bureaucrats, mostly trained in law school. Conservatives see the engorged administrative state as undemocratic and, hence, illegitimate, unless the administrators are carrying out detailed legislation, passed by their elected representatives and signed by the president. The EPA is part of the Executive Branch, after all. It is tasked with executing the law, not with passing, enforcing, and adjudicating it on its own.
Conservatives see the metastasizing administrative state as violating two fundamental precepts of the Constitution. First, Washington bureaucracies have effectively become an unelected – and poorly controlled – fourth branch of government. Second, their centralized power has slowly, inexorably crushed the federal structure of the Constitution, which leaves most lawmaking to the states.
The left welcomes this transformation, which it rightly sees as the culmination of Woodrow Wilson’s progressive vision. He openly sought to replace the “Founders’ Constitution,” which he considered antiquated, with a modern “Living Constitution,” adapted for today’s society and economy. Today’s progressives follow in his path without saying the quiet part out loud. Conservatives respond that progressive judges have gradually achieved Wilson’s goal by jettisoning constitutional restraints and evading well-established mechanisms for amending the constitution. It has been a multi-pronged attack: bureaucratic overreach, endorsed by congressional Democrats, and approved by the courts.
Debating this overreach goes well beyond the court’s ruling on carbon emissions. It goes to the heart of how we govern ourselves.
The court’s EPA ruling underscores two other basic features of American politics, both of which deserve more attention. One is the increasing focus on “outcomes, outcomes, outcomes,” with very little concern for how those outcomes are reached. Yet established, legal procedures are essential to our “ordered liberty.” Those procedures matter even more when they are mandated by the Constitution. That is the core justification invoked by the court’s conservative majority, not only for its EPA ruling but also for those on the Second Amendment and abortion.
The striking feature of the dissents by liberal justices, as well as the public demonstrations that followed, is their single-minded focus on policy outcomes. That’s understandable, given how important those outcomes are. But focusing exclusively on the policy impact of court decisions turns federal judges into legislators. Not surprisingly, some right-wing jurists on lower courts want to legislate, too. They shouldn’t. The courts’ constitutional task is to rule on the law’s meaning and to follow well-established procedures in doing so. The job of bureaucrats is to administer well-defined laws, to do so fairly, and, when necessary, to fill in small, technical gaps in the legislation. They should leave lawmaking to elected officials.
That brings us to a final, crucial point, which has been largely overlooked in debates about the EPA ruling: delegation. The constitution says Congress cannot delegate its lawmaking responsibility to others. But that’s exactly what it does when it passes broad, vague laws and asks (or permits) the bureaucracies to complete them. That’s what the court rejected in the EPA decision. Only Congress can set the rules governing major questions like CO2 pollution.
The court’s ruling produced a bizarre spectacle on Capitol Hill: Democratic senators and representatives saying, “Please don’t return that authority to us.” Why? Because they want to avoid responsibility for the laws they pass (or fail to pass). They’ve been shirking that responsibility for decades, weakening their own powers, and they want to continue.
The lawmakers’ evasion matters because it undermines the Constitution’s basic logic for avoiding tyrannical, unaccountable government power. That logic relies on the separation of powers and the assumption that each branch will zealously defend its own prerogatives. Federalism works the same way. These strategies for sharing sovereign power will work only if the separate institutions defend their own prerogatives.
That’s not what Majority Leader Chuck Schumer, House Speaker Nancy Pelosi, and their colleagues are doing. What they really care about are immediate policy outcomes. The same is true for many Republicans and independents. Important as those outcomes are, they pale beside the larger goal of preserving the separation of powers, federalism, and established legal procedures, such as counting electoral votes and the peaceful transfer of power. Those are the load-bearing walls of our constitutional democracy. We are chipping away at them at our peril.
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