Bureaucracy

The Fourth Branch of Government is Out of Control

Regulators and other bureaucrats form a fourth branch of government with elements of the other three, but little public influence.

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America has witnessed a massive shift in government authority, says George Washington University law professor Jonathan Turley—one that "has occurred without a national debate and certainly not a national vote." That shift has led to the de facto creation of a "fourth branch of government containing legislative, executive and judicial components but relatively little direct public influence."

Turley made those remarks in recent testimony before a House Judiciary subcommittee. His talk waded deeply into the weeds of legal history and precedent, but the upshot was this: By failing to rein in regulatory agencies when they overstep their bounds, the Supreme Court and Congress have allowed those agencies not merely to administer law, but to create it—and run roughshod over the public in the process.

It's hard to argue with the numbers: In one recent year alone, Congress passed 138 laws—while federal agencies finalized 2,926 rules. Federal judges conduct about 95,000 trials a year, but federal agencies conduct nearly 1 million. Put all that together and you have a situation in which one branch of government, the executive, is arrogating to itself the powers of the other two.

All of this has happened thanks largely to a 1984 Supreme Court case called Chevron. The Reagan administration chose to relax some air-quality regulations, and the Natural Resources Defense Council challenged the decision in court. The Supreme Court sided with the Environmental Protection Agency. It did so for commendable reasons: to avoid turning the courts themselves into policy-making bodies. Rather than decide whether the EPA was right or wrong, the high court deferred to the agency. This is judicial modesty.

But modesty can go too far. Federal law (the Administrative Procedure Act) requires courts to "hold unlawful" agency actions that are arbitrary or capricious, that violate the Constitution, or that exceed their authority. Turley and others contend Chevron has tilted the scales too far. He says it is "the administrative equivalent of Marbury v. Madison"—except that, unlike Marbury, it has made executive agencies rather than the courts the final arbiter of their own behavior.

The very day Turley was making that case, the Justice Department was taking steps to prove him right. It sent a "Dear Colleague" letter to state courts in all 50 states lecturing them about the harm done by the imposition of fines and fees on poor defendants, especially when those fines and fees become a source of revenue for local governments.

The letter laid out seven principles to guide the behavior of courts, and urged court officials "to review court rules and procedures within your jurisdiction to ensure that they comply with due process, equal protection, and sound public policy."

Let's stipulate right away that such practices are highly dubious and ripe for reform. That said, on what authority does an arm of the executive branch presume to dictate the activity of the judiciary—not only with regard to issues that are constitutional, such as due process and equal protection, but also with regard to those that aren't, such as public policy?

If you're sympathetic to the Justice Department's concerns—and all good people should be—it might be helpful to turn the circumstances around. Imagine for a moment that judges took it upon themselves to instruct the Justice Department about what sort of cases it ought to bring, based on the judges' opinions about "sound public policy." Whatever the merits of the argument, it's clear the judges would have no business making it.

Even more pernicious abuse has come from the Education Department, beginning with a 2011 "Dear Colleague" letter to colleges and universities that shifted the burden of proof in sexual harassment cases. Schools across the country promptly followed the directive, even though there have been serious questions about the legal basis for issuing the letter in the first place.

When pressed by Sen. Jim Lankford (R-Okla.) of Oklahoma, the Education Department offered a response that was so non-responsive Hans Bader, a former Office of Civil Rights attorney himself who has written extensively on the issue, concluded that it "simply repeated the same question-begging rationalization it gave (before)" and failed to "address the criticisms of its letter made by many lawyers and law professors."

Those law professors include 16 from the University of Pennsylvania. In an open letter last year, they criticized the Education Department not only for violating basic standards of due process, but also because "the federal government has sidestepped the usual procedures for making law."

One final example—unrelated to Chevron, but indicative of the broader problem: Earlier this month the U.S. military killed about 150 people at an al-Shabab training camp in Somalia. The Obama administration justified the attack by citing the 15-year-old Authorization for Use of Military Force—against those who were responsible for the attacks on 9/11. Al-Shabab emerged from the Somali Council of Islamic Courts that took over southern Somalia… in 2006. In 585 pages, the 9/11 Commission Report mentions al-Shabab not even once.

The Constitution gives to Congress the power to declare war—a point Virginia Sen. Tim Kaine (D) has pressed relentlessly—just as it gives to Congress the power to write the laws. These days the Executive Branch is doing both far more than the Founders intended—or the public knows. Those who do so are unelected, unaccountable, and unconstrained. For any democratic system, that is most unhealthy.

This column originally appeared in the Richmond Times-Dispatch.

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89 responses to “The Fourth Branch of Government is Out of Control

  1. It’s hard to argue with the numbers: In one recent year alone, Congress passed 138 laws?while federal agencies finalized 2,926 rules. Federal judges conduct about 95,000 trials a year, but federal agencies conduct nearly 1 million.

    Of course, libertarians complain about the more efficient and productive branch of government.

    1. Libertarians generally prefer their government to be non-productive.

      Productivity in government usually means they took either your freedom, money, or both.

      1. “Productivity in government usually means they took either your freedom, money, or both.”

        That’s not true at all though. A DMV with an average wait time of 4 hours takes more of my freedom and money than one with a 30 minute average wait time.

        The non-productive version may fail to enforce the law, but it also means that it will probably enforce it poorly and erratically everywhere it tries.

      2. I’d say it’s more accurate to say we prefer non-productive legislation, but I see where you’re going with this.

    2. No, we complain about the out of control Constitution-violating government that makes and passes laws against the will of the people. ObamaCare is one example.

  2. Congress is responsible for this fiasco. They happily delegate their authority away so they can complain about the results without bearing the responsibility.

    1. +10,000 Erm?chtigungsgesetze

    2. Agree. Congress is responsible but they tied their hands on this 100 years ago when they capped the House at 435. I disagree that they simply abdicate oversight because they want to. They abdicate it because a fixed-size legislature has a tougher job with oversight when the exec branch keeps growing. With such short-terms and large districts and seniority-constipated committees, a critter has no real choice but to focus on selling themselves to voters via wholesale politics as part of a special-interest coalition – not as a individual maverick. Legislation is driven by coalitions – oversight is driven by mavericks. Even the Senate doesn’t do oversight much anymore (Proxmire may have been the last) and oversight doesn’t fit well in the Senate anyway.

    3. This.

      Take a gander at Democratcare.

      Even after passing it you don’t know what’s in it. 8-(

  3. Oh hell I’ve been criticized by other so-called libertarians for questioning the regulatory state. “Congress doesn’t have the expertise to manage these roles” I was told.

    Just, you know, to give you an idea how fucked we are.

    1. If congress doesn’t have the expertise, perhaps it’s not a matter for government.

      1. I believe there is a way out of the regulatory morass.

        Turn the executive regulatory agencies into advisory agencies. They can keep their expertise, and they can even write the legislation as an advisory body. Those regulations are then forwarded to Congress for an up or down vote. Put the blood of regulatory consequences back on the hands of elected officials.

        1. Re: Diane Reynolds (Paul.)

          Turn the executive regulatory agencies into advisory agencies.

          But they are advisory agencies. They advise local police or federal agents to harass or even summarily execute those who do not heed their previous advise.

        2. Here’s what happens then: a representative is advised by his “experts” to pass a bill for reasons. He votes against the bill and someone dies because said bill would have prevented that death. Legal department gets involved and wonders why representative ignored his advisors. Representative then rubber stamps every bill that his advisors tell him to, “for the children.”

          1. He votes against the bill and someone dies because said bill would have prevented that death

            Not nearly enough peppered square quotes.

            Regulatory agencies thrive on “for the children” and “if it saves one life” but can never be proven right (or wrong, for that matter). Ultimately you have to call out the precautionary principle used only in favor of regulation and present the counter arguments; “for the children to run lemonade stands”, “if it saves one life from a no-knock SWAT raid at 3 in the morning”, etc.

          2. At least the Representative is voting, and can be punished by the voters. Don’t like that kind of pressure? Don’t run for office.

          3. The solution there is to eliminate unelected ‘experts’ and staffers in the legislature. The only reason those folks are there is because districts are now way too large. A district of 600,000 per elected accountable representative is insane. The House of Representatives is now the second least representative legislature in the world (India is worse). Triple the size of that legislature (ie reduce district size to 200,000 people – which is still not very representative at all) and you immediately eliminate the need for most of those permanent DC-staff ‘experts’ (who are mostly polling-type consultants rather than true attorneys or legal advisors).

            1. I think reducing the size of districts is a step in the right direction, but I would couple it with a repeal of the 17th Amendment. Make the House more representative of the people and the Senate more representative of the states, to restore the balance that was originally put in place.

              1. The biggest issue with increasing the size of the House would be increasing the size of the Senate too (to maintain a rough balance between small and large states in Electoral College). Triple the size of the House (can be done by simple legislation). And there is actually a way to increase the size of the Senate by the same – with a much less controversial amendment than simple repeal. Just change the words to –

                The Senate of the United States shall be composed of six Senators from each State, three elected by the people thereof and three nominated by the state legislatures and confirmed by the people thereof, for six years; and each Senator shall have one vote.

                That way, every election cycle involves all the House and two Senators (one direct, one legislature nommed and voter confirmed) in each state.

                There were legitimate issues back then with legislative control (notably easily corrupted legislatures and/or legislatures that wanted to ensure Jim Crow wouldn’t be challenged at the federal level). Repealing it just feeds into the tone-deaf racist dog-whistling of the phrase ‘states rights’. Amending it allows for a lot more federalist Senators – and probably more non-partisan senators too.

                1. – damn – why doesn’t this site allow edits of html code

                2. Why would you need to have any senators elected by the people? And why must they be confirmed?

                  No bill becomes law without the approval of both houses.

                  1. Because the 17th amendment was passed by 43 or so state legislatures. Only Utah rejected it – and a few Jim Crow legislatures never opined. 30 or so legislatures had passed state laws before the 17th opening it to direct election. The reality is that states themselves saw value – then – in opening up the Senate to some sort of popular input/control. I know where you’re coming from – but I don’t see the point in being ideologically stubborn about an issue that was resolved 100 years ago – by the state legislatures.

                    And pragmatically, there is zero possibility of any legislation to increase the size of the House – much less any constitutional amendment to change the way the senate is elected – if the consequence of it is that existing senators will lose their seat. you need both houses to go along with any legislative reform. tough enough to get either house to go along with something that has a possibility of making it more difficult for political parties themselves.

      2. Bingo!

    2. PB doesn’t count as a libertarian, even a so-called one.

    3. Oh hell I’ve been criticized by other so-called libertarians for questioning the regulatory state. “Congress doesn’t have the expertise to manage these roles” I was told.

      This is what happens when you let consequentialists into the club.

      1. +Michael Hihn

  4. I fail to see how a bureaucracy counts as a fourth branch. It is the charge of the Executive to reign in his subordinates. Instead, you have an Executive like this one (and the ones before him) who enable it. That’s not a Fourth Branch: that’s just a too-powerful third one.

    1. It’s like a fourth branch in that it has taken on legislative, executive, and judicial functions, albeit only at the behest of the other three branches. Of course, Congress could neuter its power tomorrow, but Congress won’t. That’s where the real fault lies.

    2. And Congress can rein in the Executive, the Court can rein in Congress, etc. While the president is officially responsible for it, the bureaucracy operates like a de facto fourth branch.

    3. You are largely correct, but you also have agencies like the labor board that are not directly under the authority of the executive or the legislature. And this is a problem at the state level as well, New York’s New food device minimum wage law being passed by a “wage board” rather than the legislature.

    4. It is the charge of the Executive to reign in his subordinates

      Except that Congress has hamstrung a lot of the ways in which the executive might do so. Attempts to ensure competency in the civil service might run afoul of the Pendleton Act (+ amendments). Attempts to curtail the overreach of a regulatory agency might run afoul of its chartering act(s).

      However, that is a fight worth having and one which no recent executive has been willing to have. Obama, for example, has been far more interested in expanding the power of his agencies and reducing the competency of the civil service.

  5. Imagine for a moment that judges took it upon themselves to instruct the Justice Department about what sort of cases it ought to bring, based on the judges’ opinions about “sound public policy.”

    I would be more concerned about a Justice Department bringing cases based on political expediency, example-making and retribution rather than sound public policy or at least something resembling justice. I’ll take my chances with the judges, thank you very much.

  6. It was the civil service that was the downfall of the Roman Republic as well.

    1. The dictators, starting with Julius Caesar, provided frumentariae (grain) partly to be popular with the poor. Subsequent dictators tried to limit or end the grain give away, but couldn’t because of political pressure. The government got the grain by forcing provinces to pay tribute with grain.

      After several generations, the Roman people got accustomed to getting their free grain. Events occurred in the Roman Empire more slowly than today because travel and communication was much slower then. Eventually Romans refused to fight to defend the empire when they could stay home and get free food.

  7. Besides, the fourth estate has traditionally referred to the media.

    1. I was confuzzeled by that. Clicked for commentary on the media. I guess the regulatory state could be the fourth, but I think they’re under the executive.

  8. Thanks for the lip service Reason. Now somebody come here and help me flip this bus over so I can set it ablaze.

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    1. Woz your brother beeting off at there labtop when you barged in?

  10. “I want a Government small enough to fit inside the Constitution”- Harry Browne.

    1. RIP to Harry (and the Constitution).

  11. Libertarian Moment, bitches! I have never been so free as I am now typing this while waiting to pay for my permission slip to keep driving my car. And I will be even freer once the carbon police collect my monthly tithings to the heat god.

    1. I would be “okay” with a carbon tax if and only if it supplanted all other taxes and did not increase the gross amount of taxes collected.

      1. So you would be ok with a bubblegum tax for the same reason? I much prefer consumption taxes to income taxes, but they need to be broad based with no social nudging.

        1. I don’t see a bubblegum tax bringing in much money.

          Half the point of my stipulations is that they’ll never be met. The practical side effects of a single targeted consumption tax being the sole source of government revenue are kind of irrelevant when such a situation will never come to pass in the first place.

        2. Put another way, my proposal is a debate tactic. If someone is really serious about fighting the sins of carbon, then there should be no dispute about the other taxes. Presuming someone could be brought on board to such a position, then a more fruitful debate about the practical effects could be had. But I’ve not yet made it that far in any discussion with a carbontologist.

  12. To claim that it is the bureaucracy that is out of control is to wrongly let Congress and the President off the hook. The bureaucracy doesn’t do anything Congress and the President doesn’t want it to. Congress and the President shuts down the bureaucracy all of the time. Congress can if it wants to make any law or regulation a dead letter by just prohibiting the use of federal funds in furtherance of it.

    If you don’t like the things the bureaucracy does, take it up with Congress and the President because they are the ones in charge. Don’t let them avoid responsibility.

    1. I think you can throw the courts into the responsibility mix, too. Rational basis review and all that.

      1. To some degree. But most of that is holding them responsible for not stopping the Congress and the President from doing terrible things. If our politicians were not so loathsome, judicial deference to them wouldn’t be such a problem.

        1. But most of that is holding them responsible for not stopping the Congress and the President from doing terrible things.

          Right – which is, ideally, the courts’ job. In other words, the bureaucracies run amok because of Congress and the President, and Congress and the President get away with it because the courts let them. Therefore, all three branches are responsible for the “rise” of the so-called fourth branch.

          1. No ideally it is the public’s job. You like the idea of courts doing it because you imagine they will use that power in ways you prefer. Chances are they won’t and will end up being even bigger tyrants than politicians.

    2. “Congress and the President shuts down the bureaucracy all of the time …”

      When has that ever happened? The current generations of Americans have rejected candidates who promised to get serious about cutting government – Rand Paul, Rick Perry, Mitch Daniels. Republicans are about to nominate Trump, who will only expand government to Make America Great Again.

      Trump will lose against Sanders or Clinton. Whatever the outcome, America will look a lot like Argentina, Italy and Venezuela in the coming decades, because that is what the American people are voting for.

  13. “Fourth Branch of Government is Out of Control”

    / fires up woodchipper

  14. And here I thought it was going to be an article on how the press likes to fawn over strongmen and candidates with certain letters by their name.

    1. Playing up the out of control bureaucracy might have the perverse effect of making a strong man more desirable. Get people to want to put in a President who promise to bring the bureaucrats into line, which is exactly what a strong man would do.

      1. Of course, “bring[ing] the bureaucrats into line” doesn’t mean the same thing to your average strongman as it means to average libertarian.

        India has a marvelously coherent bureaucracy. You bribe the officials, or you don’t do business.

        1. Sure and that is exactly my point. If you make the issue the “out of control bureaucracy” you run the risk of the public electing someone for the purpose of bringing it under control. As you point out, bringing it under control doesn’t necessarily mean what reason thinks it does.

          I think the better approach is to put the blame on Congress and the President for the actions of the bureaucracy. The bureaucracy isn’t out of control. It is doing exactly what Congress and the President it telling it to do.

          1. The bureaucracy isn’t out of control. It is doing exactly what Congress and the President it telling it to do.

            I saw some stuff from Obama’s “Blue Ribbon” report on NSA. One of the findings was along the lines of “it’s not a rogue agency; it does exactly what its masters want”.

            1. That is true for the NSA and also true for the rest of the federal government. The idea that the “bureaucracy is out of control” and nothing but a bullshit myth invented by politicians who want to duck responsibility for their policies.

          2. It is doing exactly what Congress and the President it telling it to do.

            I suspect certain agencies – the NSA in particular – are giving orders, not taking them.

            “Be a shame if these recorded phone calls you thought were private went very public. Oh, by the way, about those campaign promises you made to rein us in …”

            1. No. that is not how it works. To the extent the NSA gives orders it is because the politicians are terrified something will happen and they will be accused of not doing enough. The NSA gets what it wants because the people in charge think that not giving it what it wants will later be used against them if something bad happens.

            2. Why go to conspiracy when a mundane explanation is more than enough?

              “We need these ‘tools’ to stop the next terrorist attack”

  15. I went to a seminar a few months back, the presenter is an attorney, been a part of some landmark cases, and who has defended taxpayers being audited for decades. He’s not some shlump with an opinion. He said that relatively complicated audits that used to get settled in two days now take TWO YEARS. Why? The process is the punishment. The IRS used to hire finance and accounting grads. Now they hire English majors and Race Studies majors. You know, the safe space whiners “who are going to get a dose of the ‘real world'” after graduation. No, these people are going to be a part of the Apparatus telling us what to do.

    Over the last two decades, the Federal bureaucracy has mandarinated itself and Congress and the President and everyone we have elected has let it happen. Basically, it’s one of the reasons I gave up on the Republicans. The Republicans were supposed to be the party of small government etc etc. But they’ve been so preoccupied with their own idiocy, they let the bureaucracy get off the leash. Now you’ve got high powered Congresswomen clutching their pearls that THEY are being spied on by the surveillance state. And how do you clean it up? If the very people we elect are under the microscope, we’ve got real problems. And cut off their funding? They’ve laid away slush money and have the power to fine etc. The predatory bureaucracy makes the small time police confiscations look like pikers.

    1. I disagree with your contention that Congress couldn’t cut off the bureacracy if it wanted to. Just to take your example, I know people who do tax work as well. They would agree with your attorney’s assessment with one caveat, the IRS generally doesn’t take on big guys who can fight back anymore. They take on small businesses and individual tax payers whom they know they can fuck with with impunity. They don’t take on Congressman and anyone with any power to fight back. So, the idea that Congress doesn’t do something because they are afraid of them is just not true.

      I would also point out that the Congress has cut the living hell out of the IRS’ budget by 18% since 2010. That is mostly been in response to the IRS targeting scandal. Don’t think 18% isn’t catastrophic for those assholes. It may not seem like it is to you and me but it is to them.

      1. I find it interesting that even with cuts to the IRS tax intake is at record highs. Maybe we should cut the IRS some more and see if causation = correlation.

  16. “All of this has happened thanks largely to a 1984 Supreme Court case”

    So your saying one of the seminal moments in creating 1984 happened in 1984?

    1. I see what you did here.

  17. If you think subjecting federal agencies to more judicial oversight and less deference is going to equal more freedom, you are sadly mistaken. Killing Chevron would make things worse. The courts would intervene more in agency decisions but would do so to force agencies to go further in restricting freedom not less.

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  19. RE: The Fourth Branch of Government is Out of Control
    Regulators and other bureaucrats form a fourth branch of government with elements of the other three, but little public influence.

    Well, duh!
    That’s what socialism brings.
    More bureaucrats, more rules, regulations, more laws, more restrictions, etc. so the little people don’t leave their places in society and rise above their socio-economic status.
    Otherwise all their hard work will only make them more prosperous and independent from Uncle Sam’s gulag.
    Isn’t life in the Union of Soviet Socialist Slave States of America wonderful?

  20. Perhaps President Trump can sign a civil-service repeal bill and fire all of them?

  21. Perhaps President Trump can sign a civil-service repeal bill and fire all of them?

  22. I disagree that the regulatory agencies are a fourth branch of government. Congress, the formerly first branch, has delegated away most of its lawmaking authority to the agencies and therefore the executive substituting the agencies as the new first branch.

  23. Others have noticed too.

  24. Not to mention the 5th Column
    (aka)
    The 4th Estate.

  25. No one should be able to retire from the government with the exception of the Military. Draft federal employees for no longer than 6 years, no unions, no retirement. They want to retire? Go to work for McDonald’s.

  26. By failing to rein in regulatory agencies when they overstep their bounds, the Supreme Court and Congress have allowed those agencies not merely to administer law, but to create it?and run roughshod over the public in the process.

    It’s really the Apparatchik State that rules. Then the Supreme Court. Then the President. Then Congress.

    Basically, the farther from the voters, the more power, and the more they rule with impunity.

  27. Charles Murray’s recent book has a lot on the expansion of the unaccountable Apparatchik State.

    By the People: Rebuilding Liberty Without Permission

    He has a predictably wackiliscios anarchocapitalist legal defense cooperative idea to fight them, but the history was good.

    I tend to think we’re just fucked unless a President runs on stomping the civil service. Carly seemed to get it. And went nowhere with it.

    Maybe the civil service will annoy Trumpenfuhrer. We can only hope.

  28. And the appointment of Merrick Garland is precisely aimed at enshrining this deference to the regulatory state, protecting the new bureaucratic structures Obama has initiated with ACA, Dodd-Frank, etc.

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