Christopher DeMuth had an interesting take on the election and its impact on our national institutions. In an essay for the Wall Street Journal, he wrote of the present inability of the political branches of government to function in a manner compatible with a national public good. Analyzing that failure, he pointed to what he believes is “a central purpose of the American scheme of checks and balances,” namely:
to draw out the distinctive strengths of the two political branches, executive and the legislature, while containing their distinctive weaknesses. The scheme has not been working well of late. The consequences are unbridled executive growth into every cranny of commerce and society, and a bystander Congress. We have lapsed into autopilot government, rife with corruption and seemingly immune to incremental electoral correction.
These pathologies were “a significant cause of the Trumpian political earthquake.” Nonetheless, DeMuth insists that Trump’s victory and the Republicans’ sweep in November “set the stage for a constitutional revival.” Unlike many observers, he is optimistic about the possibility that this election can reanimate the proper working of the separation of powers.
DeMuth pins his hopes on Congress as the branch of government that is likely to reestablish its institutional and constitutional purpose. Its current political malady is that its members have more and more
acted out of loyalty to party rather than to Congress as an independent constitutional branch. They support or obstruct administration initiatives along partisan lines, and when in support they receive fundraising and bureaucratic favors from the president in return.
Thus has “our scheme of separated powers” been “supplanted by party solidarity between presidents and their congressional co-partisans.”
In other words, the institutions are held hostage by a partisanship that has undermined the separation of powers. DeMuth argues that now, however, we may see a revival of the original understanding of the separation of powers. Congress “is bound to recover and assert many of its long-neglected legislative prerogatives.”
The new President and Congress are “poised to revive constitutional practices in their own branches,” one of them being “results-oriented policy making—so-called transactional politics—an approximation of what the Founders meant by ‘deliberation.’” Another, checks and balances, is “vigorous policy competition between the executive branch and Congress.” Both have “fallen into disuse in what had seemed, until now, to be a continuing downward spiral of dysfunctional government.”
I hope DeMuth is right, and the separation of powers can once again become the primary defender of constitutional government. But, it will not be easy to accomplish.
No doubt Democrats and Republicans alike will defend the partisan interests of their offices as they have come to be understood and incorporated into the Washington establishment. But, the question remains, what establishes the ground of partisanship in Washington? Are those political offices still understood in terms of their institutional purpose? Does the Constitution impose any limits on the powers of either Congress or the presidency, or is partisanship in Washington now understood on a ground established by the modern administrative state?
If the latter, then partisan defense of Congress will likely remain a defense of the administrative state. And if that is the case, I would like to indicate some of the obstacles that stand in the way of a recovery of the primary practical defender of constitutional government, the separation of powers.
A Legislatively Created Apparatus
For much of the 20th century, American intellectuals, politicians of both parties, and leaders of mass social and economic movements had looked to the presidency as the institutional focus of Progressive reform. They worked to create a vastly more powerful executive branch of the national government. The goal of reformers was the transformation of the American regime from a constitutionally limited government to a modern, rational, or administrative state. The Great Society, a high water mark of that transformation, brought about an expansion of national political power within the federal government that required a centralization of administrative authority in Washington. Prior to the 1960s, political and administrative authority had been decentralized, and had long been the domain of local and state governments.
But, before the centralization could happen, Congress had to be reorganized in a manner compatible with the requirements of an administrative state. This occurred when Congress transformed itself from a deliberative, primarily lawmaking, body into a body primarily taken up with oversight of executive agencies. In addition to destroying the fabric of federalism, this administrative centralization had the effect of undermining the separation of powers, making it difficult if not impossible for Congress, the President, and the bureaucracy to function amicably in pursuit of a national interest. What we have seen in subsequent decades is the steady expansion of a modern administrative state that is distinctively American in that it coexists with a limited-government Constitution.
For the past half century, Congress, as an institution, has found itself in a curious and paradoxical position. It has attempted to retain the preeminent place it naturally held within the structure of a republican government, while at the same time giving up the fundamental power that established its preeminence. Congress has willingly relinquished much of its lawmaking power. It did so by delegating significant lawmaking authority to an administrative apparatus. This legislatively created edifice was established incrementally, and served as the foundation for an executive branch bureaucracy. It was meant to establish a new, and more rational, decisionmaking process. As a result, the legislative branch was forced to become an oversight body, meanwhile sharing that task with the President and the courts as well.
This transformation was expedient, perhaps even necessary, once political and administrative power at the state and local levels of government began to give way to national control. But as the change proceeded, Congress could no longer understand its institutional function, or its fundamental purpose, in purely constitutional terms. Consequently, the separation of powers no longer functioned as the principal means of ensuring a republican, or constitutional, government.
The Constitution made it clear that nearly every power of government that is not a constitutional power is derived from the lawmaking power of the legislature. The most significant power is established through control of the purse. The power to control taxing and spending, James Madison argued in Federalist 58, is “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” It is complete because it allows the legislature to establish the purposes of government, and to determine its priorities by putting the public wealth of the community in the hands of the people’s representatives. It does so by placing the power of the purse almost exclusively in the hands of the lawmaking body, subject only to executive participation as part of its veto power.
Why is this weapon so effectual? Because it connects the interests of government with that of the people as constituents; there is no separating out of certain people (the well-connected or the well-placed within government or society). Moreover, the other two branches depend on Congress for the resources necessary to conduct all of their operations. However, the exalted power of the purse is inextricably connected to the lawmaking power of Congress. In giving up its lawmaking power, it lost detailed control of spending. That power has been delegated to the administrative apparatus. In recent years, members of Congress have been unable to participate, meaningfully, in formulating the details of legislation, or even passing appropriations bills—those that fund the federal judiciary and the various departments of the executive branch—because modern legislation, or rulemaking, is no longer simply a reflection of the sentiment of the legislative body as a whole.
The institutional and constitutional powers of Congress depend upon retaining, within the legislature itself, the power to determine what the priorities of government should be, and how money is raised and spent on their behalf. If that is done by legislative lawmaking (authorization bills and appropriations bills), the members of Congress, and the majority party that controls the legislative branch, can determine, through general legislation, the priorities of government subject only to presidential veto or subsequent judicial oversight. This constitutional structuring of the power of the political branches, understood in terms of their institutional purpose, made conflict between the branches and parties a necessary part of government. It was dependent upon the structural separation of powers as essential to the protection of popular rule against the tyrannical encroachments by any branch of government, including the administrative bureaucracy.
The Rule of Organized Knowledge
In recent years, the delegation of power to the executive branch bureaucracy has transformed the character of rule, from one that presupposes political control of government by the constitutional branches, to rational, or centralized, administrative, rule. We know what theories justify constitutional government. What theory justifies rational authority? This kind of authority rests on the alleged necessity of establishing social intelligence, or organized knowledge, as essential to social and political progress. The administrative power of government must be unlimited, because use of the scientific method is considered central to the cultivation of useful knowledge on behalf of the ongoing resolution of social and economic problems.
Science and social science have in this way become essential to the continuous transformation of economic and social life. The modern bureaucracy is the rational structure designed for the administration of progress. Consequently, the administrative realm becomes more important than the political in terms of establishing the priorities and purposes of government, and unifying, as well as determining the details of policies through rulemaking and regulation.
The administrative state has so expanded within the national government that it cannot be easily circumscribed in a manner that is compatible with constitutional limitations. Nor can the political branches, which were established as separate powers, function amicably in a constitutional manner, requiring each branch to pursue public policies from an institutional perspective, but on behalf of a public good (the “transactional politics” of which DeMuth so sanguinely speaks). Consequently, the political institutions of the national government have had difficulty understanding their political power in terms of their institutional or constitutional purpose. Rather the Constitution has been interpreted in a manner that has facilitated the adaptation of the political institutions of government to the requirements imposed by the administrative state.
Thus the extreme difficulties of establishing a common ground of policy agreement between the legislature and the executive by, and on behalf of, a national political electorate. That electorate is in fact made up of two majorities: one congressional, the other presidential, and both accountable to the people. The political agreement of both constituencies is necessary in order to legitimize the actions of the national government. In the absence of such agreement, it is not easy to reach a governing consensus derived from and legitimized by the consent of the governed. Unlike constitutional rule, administrative rule is the rule of organized knowledge on behalf of organized private interests, both economic and social.
The administrative state requires elaborate policy networks that link those private economic and social interests to the political and institutional apparatus, an apparatus that takes in the legislature and its staff. The leaders of both Houses of Congress, and their counterparts in the White House, have had to cooperate simply in order to keep the government functioning. In doing so, they have served the interests of the administrative state, at the expense of an institutional, political, and constitutional, role for the members of Congress. Rather than lay out the details of governmental operations, and the respective spending totals, through the passage of appropriations bills, which had been the normal practice, it has been easier in recent times to use omnibus bills or continuing resolutions to attempt to reflect the will of the legislative body.
As former Senate Parliamentarian Robert Dove noted not along ago:
What you have in Congress right now is a situation in which things are simply bucked up to the top level—the two leaders in the Senate, the Speaker in the House. They frankly ignore the regular order and go on their merry way.
And yet this centralization of congressional power in the leadership only facilitates the handing over of control to the President and the executive branch bureaucracy; it is the latter two who more or less drive the agenda of Congress. That transfer of power to the administrative apparatus has facilitated centralized decisionmaking in the leadership of both parties and both branches. The result is the debilitation of the committee structure in Congress. Without effective oversight of the executive branch through the committee structure, the practical reality is that the organized interests, aligned with the bureaucracy, have come to establish their own priorities.
Political and partisan conflict in America has been transformed. Any attempt to restore the proper functioning of Congress would require a return to the kind of body that is first and foremost a lawmaking body. Or, Congress could return to its earlier practice with regard to the executive branch, wherein its central focus was administrative oversight of the executive branch.
The first is unrealistic. Congress is unlikely to reorganize itself in a manner that would reanimate its legislative function. The latter, administrative oversight, has the virtue of allowing Congress to participate in the administrative process in a politically meaningful way. In the past, members devoted their careers to those policy areas in which their committee had jurisdiction. It was in the ongoing process of subcommittee hearings, bill markups, floor amendments, earmarks, and conference reports, which made possible to cobble together a bipartisan congressional consensus on spending. Whatever its drawbacks, it enabled Congress as an institution to participate in legislation—but also in administration—through greater control of budgets and direct allocations of revenue.
When the Democratic Party controlled Congress, after administrative centralization became a reality in the 1970 and 1980s, it established the legislature as the defender of the administrative state, primarily, in opposition to a Republican sitting in the White House. It mobilized the resources of the legislature in a manner compatible with management and oversight of the bureaucracy. The large size of the legislative body was itself an advantage in terms of controlling a far-flung bureaucracy. But, Democratic congressional leaders were dependent upon decentralizing and augmenting the authority of the individual members by increasing staff and micro-managing the bureaucracy.
The Democratic Party had long been the primary defender of the legitimacy of the administrative state, not only as a necessary adaptation of government to modern conditions, but as a fundamental good, in many ways more just than the 1787 Constitution. It has been far more effective in establishing political and institutional control of the bureaucracy, because it has understood itself, primarily, as the defender of the administrative state. It has supported bureaucratic expansion when in control of the legislative branch, and defended or expanded bureaucratic prerogative, when in control of the presidency.
Gingrich and Clinton Make a Revolution
In the early days of administrative centralization, Republican Presidents were perceived to be a threat to the bureaucracy. Only after 1994, when the Republican Party took control of the House (and Senate) for the first time in 40 years, was there a congressional effort to rein in the power of the bureaucracy. At that time, Speaker Gingrich centralized power in the leadership of the legislature, in order to challenge the President from the House. In the process, he weakened the House’s ability to oversee the executive branch. Moreover, it became clear during the government shutdown of 1995-1996, in his battle with the Clinton White House, that congressional leadership could not shape public opinion nor could it run the executive branch from the legislature. In that political battle, the bureaucracy, and the constituencies dependent upon it, turned to the presidency for its defense. The battle against the Speaker revived the Clinton presidency, and gave life to what has been called the administrative presidency.
The administrative presidency of the past two decades has replaced the administrative Congress of the 1970s and 1980s as the branch of government that has come to dominate American social and economic policy, and national security and foreign policy as well. Every President since Clinton has seized the opportunity to enhance executive power through more detailed control of administration.
George W. Bush, a Republican, expanded those powers beyond what Democratic Presidents had done, particularly in his of use of executive orders, executive memos, and signing statements, many of which were at odds with congressional intent. The 43rd President went beyond what the 42nd President had done in terms of executive micromanagement, and paved the way for President Obama’s even more expanded use of executive authority on behalf of domestic and foreign policy constituencies. Hence the only kinds of general legislation that could get through Congress (the law creating a Department of Homeland Security after the 9/11 attacks, Obamacare, the Dodd-Frank law passed in the wake of the financial crisis of late 2007 to 2009) were those that enhanced the power of the executive and required even greater discretion for their ongoing administration.
By the beginning of the 21st century, the administrative process itself had come to control Congress. The consequence was a further erosion of the separation of powers, and political rule, by requiring the institutional cooperation of both branches on behalf of administrative, rather than constitutional, governance.
In recent years, the party caucuses of Democrats and Republicans, in the House and in the Senate, have ceded power to the bureaucracy and have enabled it to rule on behalf of the national, economic, social, scientific, educational, religious, and cultural elites. Those policies have been administered through states and local governments, as well as public and private organizations. Access to the national political branches of government is dominated by these elites—and they are public as well as private elites. The national political branches have, in turn, given these elites the ability to bargain and negotiate with the administrators in the departments and agencies that promulgate the rules by which they are governed.
It is safe to say that this process has produced a regime in which it is nearly impossible for the rule of law to establish the conditions of equal treatment of all citizens. Rather, it enables unequal privilege for those who have a seat at the table, and allows them to participate in negotiating the rules that govern everyone. The actual practice of the political branches of the federal government is driven by the ongoing need to accommodate the various interests and constituencies that have coalesced around the administrative state.
In contemporary politics, it is an element of government itself—the bureaucracy—that has established the purpose, unity, and the rational authority of the political branches. Moreover, the bureaucracy has itself become a faction on behalf of centralized administrative rule. It is no longer the neutral, bipartisan servant of its political masters. And, the courts, too, have approved the change to administrative rule, by allowing Congress to delegate authority to administrative bodies through the use of vague and unfinished, or incomplete, mandates that cannot be characterized as legislation, and in no way resembles general laws. In short, after nearly a half century of its growth, the bureaucracy has established itself as the conservative defender of Progressive liberalism. It is the keystone of the rational state.
Once established, the bureaucracy, and the political, economic, and social forces beholden to it, have sought to increasingly replace politics, in other words a substitution of administrative rulemaking for general lawmaking. In practice, this rule by experts in place of rule by elected officials means that the political rule of law more and more gives way to executive (or rational administrative) discretion. Thus has the presidency itself come to be understood in terms of its capacity to control the administration on behalf of partisan constituencies. Both parties have sought to use the presidency in an administrative manner, on behalf of organized interests.
Elections and the Administrative State
And at election time, both major parties have attempted to mobilize the American people in terms of group interests, even dividing the electorate into discrete demographic groups. Presidential elections, managed by professionals, have proven incapable of mobilizing an electoral consensus on behalf of a common good. Congressional majorities, moreover, have come to depend on the ladling out of government largess and constituent services as key to control of the legislature. As a result, institutional loyalty has been replaced by political partisanship either on behalf of—or, in the case of the Republican Party—opposition to the administrative state. Although partisan and policy differences can be accommodated within the administrative state, it is the legitimacy of the administrative state itself that has produced a political crisis.
But in recent years, neither party has attempted to oppose the administrative state in a political manner. Not only does the Democratic Party, as mentioned, defend it, but the Republican Party has abandoned its political defense of constitutionalism and has sought to defend the Constitution as a formal legal document. As a result, Republicans depend on the Supreme Court as the lynchpin of that defense. In doing so, it has ceded the political and administrative realm to the defenders of the administrative state.
The cooperation of all three branches on behalf of the administrative state has undermined the political dynamic of separation of powers. And this undercuts constitutional government itself, by severing the connection between the institutions of government and the electorate. In recent years, neither the parties nor the institutions have been able to restore political rule. Such a transformation had to come from a President, or presidential candidate, who could mobilize a national majority on behalf of political rule that might enable institutional change.
Christopher Demuth recognized the paramount importance of the separation of powers in ensuring the proper functioning of our political institutions. In addition, he saw the possibilities for reform that have been revealed as a result of the election of Donald Trump. Indeed, it was the political opportunity provided by the constitutional structure, or separation of powers—not the organized political parties of the officeholders, or the offices they held—which made such a political transformation possible. There had been little incentive within the Washington establishment to change the way it does business. Both parties, and the two political branches of the national government, have ignored their institutional and constitutional roles. But, although the administrative state has established tremendous power in Washington, it has also engendered considerable opposition in the country at large.
By mobilizing a constituency outside of and against the Washington establishment, Trump seized the opportunity to revitalize politics in a manner that may, at least potentially, make a revival of the political separation of powers possible. He did so through a direct political appeal to the electorate—one that has been difficult for anyone from within the Washington policymaking establishment to make. Politicians have had to appeal indirectly to the organized interests, and to the centralized media, not to or on behalf of the political constituencies themselves. The representatives of organized and centralized interests of which I’ve spoken had become the mediators between government and the people, but the brusque Trump cut through that layer.
Because the political representatives have represented organized public and private interests en masse, it has been difficult to establish governing coalition on behalf of a public interest. Modern professional elections have exacerbated the problem by, as I said, dividing the electorate and appealing to discrete demographic groups. Nonetheless, the officeholders have alienated themselves from the political electorate. Under these circumstances, the Washington establishment itself became a political target. Only an outsider could have benefitted from the hostility of the American electorate, and their acute awareness that the federal government was no longer able to pursue, let alone accomplish, a political common good.
There is no guarantee that Donald Trump can or will succeed in restoring political rule. He has the opportunity to establish a new political landscape, one that is not yet recognizable. It seems likely that the new partisanship he has brought to bear will be at odds with many of the organized interests in Washington. Those interests will defend themselves and their alliances with the bureaucracy. Still, Trump must establish a governing coalition, and this requires the cooperation of a legislature that has been the anchor of the administrative state.
He does benefit from one major asset: the political electorate he has mobilized. He will likely enjoy greater flexibility in dealing with Congress than any Republican in recent times. He may well bargain with congressmen and women of both parties, establishing a governing coalition on a new ground of partisanship not yet visible. The field is open for him to lay the groundwork for a political realignment of a magnitude not seen since FDR.
Trump’s election has shown, moreover, that personal motives, ambition, and civic courage are all still necessary for political life. Even if he fails to derail the Washington establishment, someone of similar political ambition, and with awareness of greater possibilities for success, may take up the mantle on behalf of restoring popular government. The American Founders, in establishing a constitutional separation of powers capable of animating different majorities in the political branches of government, were wise to trust human nature, and not the “parchment barrier” of the paper Constitution alone, as the best defense of political rule and the rule of law.
Indubitably, our nation’s finances are a mess. America has run deficits 36 of the past 40 years. The national debt is $18 trillion, and it has tripled as a percentage of GDP since 1974. Each February, the President rolls out his budget—a collection of tomes loaded with tables and text attempting to explain the government’s $3.7…
John Marini provides an insightful commentary on Christopher Demuth’s optimistic suggestion that President Trump and the Republican Congress will be able to revive separation of powers and, by so doing, rescue us from an “autopilot government, rife with corruption and seemingly immune to incremental electoral correction” that the administrative state has created. Marini is less…
Americans are worried about the economy and jobs, about national security and safety from terrorism, about securing healthcare, about their children’s education. Lately I haven’t heard too many people talking about the problem of separation of powers. In fact, besides John Marini, Christopher DeMuth, Jonathan Turley, and a few other scholars and policy wonks, I…