Ryan McMaken
School children learn that there are three
branches of government: the legislative, executive, and judicial. In
actual practice, however, there are four branches of government.
The fourth is what for decades now has been called a "headless fourth branch of government," the administrative state.
As early as 1937, in a "Report of the President's Committee on Administrative Management," the authors write:
Without plan or intent, there has grown up a headless "fourth branch" of the Government, responsible to no one, and impossible of coordination with the general policies and work of the Government as determined by the people through their duly elected representatives.
The problem of waste and lack of accountability in
this fourth branch, the report notes, has "been clearly recognized for a
generations and ha[s] been growing steadily worse decade by decade."
The Spoils System and the Permanent Bureaucracy
The report isn't wrong. By the late nineteenth
century, "civil service reform" had ended the old system "spoils system"
and the advent of lifelong "professional" civil servants, brought the
establishment of a bureaucratic class which saw its interests and
loyalties as separate from the elected civilian government. This
detachment from elected policymakers meant the administrative state was
not terribly concerned with either efficiency or responsiveness to the
public. It became an interest group all its own, but with far more power
than any ordinary interest group.
The creation of the professional civil service had been a victory over the legacy of the populist Andrew Jacksonwho
had demanded a move away from the old "professional" bureaucracy
established by the Federalists. Jackson denounced the professional
bureaucrats, concluding such persons "acquire a habit of looking with
indifference upon the public interests and of tolerating conduct from
which an unpracticed man would revolt." Instead, the Jacksonians
insisted "rotation" in government offices "constitutes a leading
principle in the republican creed."
In practice, of course, this new non-political
bureaucracy was anything but unbiased. Over time, the bureaucracy became
self-consciously devoted to the "merit" system under which the
bureaucrats imagined they gained and retained their offices by virtue of
their own excellence.
Nonetheless, this problem of the bureaucracy as
self-interested class would have remained quite limited were the powers
of the bureaucracy more limited. Yet with the advent of the New Deal
under Franklin Roosevelt, the size, scope, and power of the
administrative state multiplied.
The Bureaucracy Takes Over the Functions of the Other Branches of Government
Moreover, as the New Deal progressed, the regulatory agencies came to assume all the powers that were supposed to be reserved to the branches of government that were given specific powers in the federal constitution. In his book Ex America (aka The People's Pottage) Garet Garrett described this transformation:
These agencies have built up a large body of administrative law which the people are obliged to obey. And not only to they make their own laws; they enforce their own laws, acting as prosecutor, jury and judge; an appeal from their decisions to the regular courts is difficult. … Thus the Constitutional separation of the three governmental powers, namely, the legislative, the executive and the judicial is entirely lost.
Thus, thanks to the rise of this fourth branch of
government, an American is subject to laws not passed by any Congress,
and subject to judicial punishments not commanded by any court of law.
It's all done "administratively" but nonetheless allows the agencies to
"make and execute their own laws."
The Rise of the National Security Bureaucracy
At the same time the regulatory administrative state was making so many gains, so was the federal government's domestic police force...
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