On 16 June 1933, the front page of the New York Times announced the enactment of President Roosevelt’s New Deal legislation:
Assuming unprecedented peacetime control over the nation’s economic life, President Roosevelt placed in operation today his sweeping program for recovery from the depression. Within two hours he signed acts of Congress giving him control over industry, power to coordinate the railroads, and authority to start work on a $3,300,000,000 public works program, and then began the active administration of these and other major measures.
N.Y. Times, A1 (6/16/1933).
This expansion of government power marked a radical departure from our country’s founding principles of liberty. Over the next few years the federal government spawned over 100 new agencies—called the alphabet agencies—to wield this power. This was the beginning of the administrative state.
The administrative state is incompatible with liberty for many reasons, most of which have to do with laissez-faire principles. But one reason that should persuade even the most committed statist is that adopting the administrative state undermines the core constitutional principle of separation of powers.
Long before the founding fathers began worrying about American independence, statesmen and political philosophers had advocated separating the powers of government. The idea itself is rather simple: if a single governing body possesses the power to write the law (legislative power), enforce the law (executive power), and apply the law to individual cases (judicial power), then there is nothing to prevent that governing body from destroying liberty. James Madison wrote about the importance of separating government’s powers as follows:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
James Madison, The Federalist No. 47
When the powers of government are distributed among coequal branches, the excesses and extremes of any one branch are moderated by the other two. For example, if the executive branch tries to use its power to unlawfully oppress an individual or group, the judicial branch can declare its actions unlawful, or the legislative branch can enact a law to prevent the oppression. Of course, if all three independent branches conspire together to destroy liberty, then separation of powers will not help. But having such a combination is far less likely than having just one of the branches run amok.
Nazi Germany, which exemplified many of the evils of unrestrained government power, serves as apt illustration of the consequences of disregarding the principle of separation of powers:
Independence of the judiciary was destroyed. Judges were removed from the bench for political and ‘racial’ reasons. Periodic ‘letters’ were sent by the Ministry of Justice to all Reich judges and public prosecutors, instructing them as to the results they must accomplish. Both the bench and bar were continually spied upon by the Gestapo and SD, and were directed to keep disposition of their cases politically acceptable. Judges, prosecutors and, in many cases, defense counsel were reduced in effect to an administrative arm of the Nazi Party.
United States v. Altstotter, Nuremburg Military Tribunals case no. 3 pg 7 indictment count 1 ¶ 7 (1947).
I am not arguing that disregard for the principle of separation of powers directly caused the horrors of Nazi Germany. I am confident, however, that separating the three primary government powers helps guard against such radical movements. This should appeal to individuals on every part of the political spectrum.
It is critical to understand that keeping government powers separate is the people’s responsibility. Each of the three branches will naturally press against the limits of its power—even when not driven by radicalism. That is the nature of power. So, if the people disregard the principle of separation of powers, each branch will gradually usurp the power of the others.
Usurpation by the judicial branch is called judicial activism, and it frequently attracts media attention and public anger. But the harm to separation of powers wrought by the administrative state, sometimes called the “unelected fourth branch of government,” attracts little notice today—although it was vehemently opposed in its early years.
So, how does the administrative state undermine the principle of separation of powers? The following quote from the United States Court of Appeals for the Ninth Circuit helps illustrate:
Most federal administrative agencies combine within one organization a number of responsibilities that our system of government normally seeks to separate. They formulate policy as does the legislature, administer policy as does the executive, and adjudicate controversies as does the judiciary. They investigate infractions of statutes or regulations, prosecute those against whom their investigation has established a prima facie case, and judge the case they themselves have presented.
Grolier v. Federal Trade Commission, 615 F.2d 1213 (9th Cir. 1980)(citing W. Gellhorn & C. Byse, Administrative Law, Cases and Comments 1035 (1974)).
In brief, most federal agencies violate the principle of separation of powers.
Unfortunately, this isn’t just another academic issue that will never touch the life of the average citizen. Agencies write volume upon volume of regulations each year. Most businesses are subject to agency regulation, and the consequence is that consumers must pay higher prices for goods and services. Agency regulation is particularly costly because it lacks the tempering influence of separation of powers.
Since the legislative, executive, and judicial functions are merged in many federal agencies, an agency’s regulatory goals may change drastically on short notice. Executive agencies are particularly volatile because every time the nation elects a new president, executive agencies get new leadership and the agencies’ regulatory goals change. When regulations change, businesses must spend money to comply, and these expenses are passed along to consumers.
Notwithstanding all this, I think it is important to recognize that the problems which agencies are created to solve are not often trivial. Usually they are serious problems which demand a meaningful solution. But the administrative state is not it. The administrative state violates the principle of separation of powers and permits the elected branches of government to punt tough issues of governance to unelected bureaucrats.
When the wealthy go hunting, they often employ people called beaters to walk in the thickets and startle animals into the open. If the animals were intelligent, they might recognize that they had two options besides running out in front of the hunters’ guns: stay put and let the beaters wander by or, if the beaters get too close, attack the poorly-armed beaters as they grope blindly through the thicket.
Choosing the administrative state in an effort to solve the nation’s problems is to permit fear or discomfort to drive us into a rash decision which undermines liberty; it is like the animal choosing to run out in front of the hunters’ guns. We must not forget that we have other options. If a problem is not yet concrete, if it is still possible that it will not come about, we can dig in deeper and wait for clearer information. Perhaps advances in technology will solve the problem. Maybe the potential problem will turn out to be nothing more than an unfounded suspicion. Finally, if we find that the problem is unavoidable, we can attack it head on. Our elected representatives can craft thoughtful legislation in harmony with the Constitution to solve those problems which are capable of solution.