Posted: October 31, 2011
n 1952 Justice Robert H. Jackson said "the rise of administrative bodies" was "the most significant legal trend of the last half-century." That trend has continued in the ensuing 59 years, during which the administrative state lost only a handful of skirmishes while consolidating its victories and expanding its domain.
In The Executive Unbound, eminent legal scholars Eric A. Posner and Adrian Vermeule declare the contest over, and the result a triumph for executive power. Furthermore, they argue, the right side won. Modern democracies give more and more power to an unfettered executive because it's the only way to govern complex societies. "Liberal legalists" object to the lack of legal constraints on the administrative state because they suffer from "tyrannophobia," an unwarranted and excessive fear of unrestrained executive power.
The argument of The Executive Unbound alternates between a bold and a soft formulation. The bold one, implied by the title, is that we live in a post-Madisonian republic, where the need to oblige the government to control itself is an anachronism. The softer formulation, to which the authors periodically retreat, asserts that the executive is indeed bound, but by political rather than legal constraints, which are stronger in domestic than in foreign policy, and which vanish almost entirely during emergencies. Public opinion, in their view, protects liberty better than clunky, ineffectual parchment barriers. The softer formulation, more persuasive (and more Madisonian) but certainly less controversial, results in a book whose dust jacket promises more than its pages deliver.
The Executive Unbound argues that James Madison's Constitution contained important errors. In particular, the separation of powers was doubly flawed. First, Madison was wrong to believe that the personal motives of officials could be connected to the constitutional offices they held. Short time-horizons and collective-action problems prevent individual legislators and judges from working to augment the institutional strength of Congress and the courts. Only the executive branch is exempt from these difficulties.
Second, the separation of powers does not produce socially optimal results. The price mechanism allows the uncoordinated and decentralized decisions of economic actors to generate growing prosperity, but no invisible hand alchemizes political self-interest into the public good. "There is no general mechanism ensuring that the decentralized decisions of branches will produce the optimal level of checking," Posner and Vermeule write, "except possibly in an accidental and temporary fashion."
Beyond its flawed separation of powers, the Constitution's Article V is too cumbersome to be an adequate vehicle for constitutional change. Madison's arguments about the virtues of constitutional stability inadequately accounted for the importance of constitutional adaptability. The result was a structure that has relied on constitutional "showdowns" rather than legal mechanisms to effect needed corrections.
These three flaws in the Constitution rendered the rise of the administrative state inevitable and beneficial, according toThe Executive Unbound.
Unfortunately for this argument, modern legislative-executive relations tend to confirm Madison's expectations. When President Obama initiated hostilities in Libya, it was not only Republicans but also House Democrats who objected to the administration's failure to notify Congress in advance of the attack. John Larson and Maxine Waters (among others) expressed constitutional concerns over the president's action. (Dennis Kucinich, predictably, brought up the possibility of impeachment.) When the president used White House "czars" to increase the administration's control of the bureaucracy, it was Russ Feingold and the late Robert C. Byrd who objected to such efforts to manage what is often thought to be the executive branch. And when Obama sought enhanced rescission authority to control lavish congressional spending projects, fellow Democrats in Congress were reluctant to fall in line.
These institutional cleavages, real and powerful, are perhaps the major cause of internal party divisions these days. Contrary to the argument of The Executive Unbound, ambitions appear to be counteracting ambitions often and reliably.
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Having dismissed the Madisonian Constitution, Posner and Vermeule ask whether we might find constraints on executive power in ordinary statutes. If the Constitution is "too rickety" to constrain executive power, what about laws passed by Congress? The authors have in mind, specifically, foreign policy-related statutes, such as the War Powers Resolution, and the central statute governing the administrative state domestically, the Administrative Procedure Act (APA).
According to Posner and Vermeule, such restraints on the executive are also ineffective. The foreign affairs laws are "dead letters" and APA "contains a series of adjustable parameters that the courts use to dial up and down the intensity of their scrutiny over time." In other words, APA contains both legal "black holes" and "grey holes" that grant wide discretion to administrative agencies. For instance, the notice-and-comment procedures for agency rulemaking do not have to be followed if an agency asserts "good cause" for not doing so, and the courts frequently accept the agencies' reasoning. Similarly, APA grants courts the authority to overturn arbitrary or capricious agency actions, a "standard" of review that is too elastic to be a standard.
These and other ambiguities in APA, the authors allege, ensure that we remain a regime with an unbound executive branch. In fact, nearly the opposite has occurred. The black holes and grey holes work to the courts' advantage, not the president's, since the courts can (in Posner and Vermeule's admission) "dial up and down the intensity of their scrutiny" of agency action. Modern administrative law is a story of how the Progressives' original vision for an unbridled administrative apparatus was thwarted by liberals who, no longer trusting agencies to act in the public interest, enlisted interest groups and courts to constrain agency activity. In this endeavor they were aided by an enthusiastic Congress, perfectly happy to reassert control over administrative agencies that constituted more and more of the federal government.
The famous decision of Massachusetts v. EPA in 2007 is instructive. The Environmental Protection Agency had determined that it was not required to regulate new automobiles' tailpipe emissions under the Clean Air Act. Rather than getting its way, the agency was told by the Supreme Court that it had the statutory power, and perhaps the duty, to regulate these emissions. If the agency were so "unbound," how could the Court assign regulatory obligations to it?
In other words, the evidence the authors use to demonstrate an unbound executive yields exactly the opposite conclusion. In today's administrative state the executive is comparatively powerless to control agency decision-making, but Congress (with its powers of the purse and program authorization) and the courts (through judicial review) can dramatically affect administrative outcomes.
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A second fundamental error undermines the book's contention that the expansion of the administrative state entails an expansion of executive power. Posner and Vermeule are doubtless correct that the administrative state has altered significantly the framers' design. As they rightly explain, the original Constitution plus its amendments "does not even approximate the political terrain" of today. As Justice Byron White acknowledged in Buckley v. Valeo (1976), "the development of the administrative agency...has placed severe strain on the separation of powers principle."
But the authors go further. They not only argue that the administrative state has upset the original constitutional framework, but that it has expanded executive power beyond the reach of any legal constraints. In their view, "the facts of the modern administrative state" entail "massive delegation to the executive," threatening "to relegate legislatures and courts to the sidelines." Because there are no laws to check the power of the executive in the administrative state, the constraints of public opinion are all that remain.
Though it may be true that the administrative state has changed the constitutional landscape, it has not resulted in the expansion of executive power, because administrative power is not the same as executive power. Administrative agencies occupy a mysterious netherworld in our government, rather than fitting neatly into the executive branch. Their powers combine legislative, executive, and judicial functions.
This point was well understood by the early theoreticians of the administrative state. Herbert Croly wrote in Progressive Democracy that executive powers involve merely carrying out the clearly expressed will of a superior agent, while modern administrative powers combine all the powers of government. This is why administrators and their activities are often exempt from presidential control. As James Landis, one of Franklin Roosevelt's most trusted advisors, explained, "the resort to the administrative process is not, as some suppose, simply an extension of executive power.... In the grant to [an agency] of that full ambit of authority necessary for it in order to plan, to promote, and to police, it presents an assemblage of rights normally exercisable by government as a whole."
Thus, for administrative agencies to "execute" a law that contains no definite rules or measures of action does not make their powers executive in nature. Modern agencies legislate, execute, and adjudicate, and are accountable to Congress, the courts, and the President, rather than to the chief executive exclusively. The delegation of power to the administrative state has resulted in a new separation of powers, between four branches of government: Congress, the president, the courts, and the agencies. The executive branch is more tightly bound as a result of this change, since the president does not have tools equal to his competitors in the ongoing struggle to steer the federal bureaucracy.