Joseph Natali is a graduate student in Political Science at Baylor University.
On a recent episode of the popular podcast All In, venture capitalist and Trump supporter David Sacks concisely articulated a key aspect of the President Elect’s platform. “I’d like you to show me in the Constitution where the bureaucracy or the administrative state is a branch of government,” Sacks demanded. “We are ruled,” Sacks continued “by a fourth branch of government that is not in the Constitution… doesn’t report to anybody…” and “is not subject to elections.” For Sacks, and perhaps millions of other Trump supporters who rallied behind the president’s call to “drain the swamp,” the size and power of the federal bureaucracy is genuinely frightening. In many ways, these concerns are perfectly reasonable. Given the fact that the average American is far more likely to have their lives directly impacted by the decisions of a federal agency than they are their elected official, it would be strange if the public was largely unconcerned with the accountability of the bureaucrats making those decisions. This aspect of the MAGA platform is one that is ultimately a political question, to be decided by politicians. Still, there remains an element of Sacks’ concerns that deserves attention from a more academic perspective. Is there really no constitutional basis for the federal bureaucracy? If not, what should be done about the administrative state? In answer to Sacks’ question, I argue that, while there is certainly no basis for a “fourth branch of government,” there is plenty of constitutional justification for a national bureaucracy. We can both take seriously the concerns of many Americans who are skeptical of bureaucracy, and still defend the idea of bureaucracy on Constitutional grounds.
It’s become somewhat of a Conservative fetish to contrapose the modern bureaucracy with the “Founders’ Constitution.” Pundits on the Right assert that the very idea of unelected officials making enforceable rules is repugnant to the basic principles of American government. Of course, there’s plenty of evidence to suggest that the Founders anticipated the existence of unelected officials with rulemaking power, and even provided for it in the Constitution. Article II Sec. 2 of the Constitution grants the president the authority to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” These “Officers of the United States” who lack constitutional modes of appointment are effectively bureaucrats within the federal administrative state. In other words, Article II Sec. 2 of the Constitution presupposes the existence of a federal bureaucracy and provides a constitutional means of staffing that bureaucracy. Furthermore, early interpretations and applications of the necessary and proper clause, including Alexander Hamilton’s successful push to charter a national bank, indicate that the Constitution allows for the creation of independent rulemaking agencies. Of course, all of this is merely academic. Appeals to the “Founders” as a kind of magisterial authority regarding what American government can do are, quite frankly, trite and unconvincing. It doesn’t really matter if Alexander Hamilton supported or opposed a federal bureaucracy. The fact of the matter is that we have one today, whether or not Hamilton would approve. Not only are conservatives wrong, they’re also making bad arguments.
Except, we’ve failed to address the substance of the conservative concern. Hyperbolic statements about the fundamental incompatibility between bureaucracy and constitutional government serve to obscure the deeper question that many conservatives are asking. It seems to me that the heart of Sacks’ comment is not that the explicit text of the Constitution fails to sanction the existence of a bureaucracy at all, but rather that it fails to sanction the existence of the bureaucracy we actually have. In other words, Sacks, and the rest of the MAGA crowd, are less concerned about bureaucracy as such than they are about the bureaucracy’s accountability to the people. Indeed, this is the way that more nuanced conservative arguments frame the question. Conservative concerns about the deep state can be understood as a kind of irrational anti-intellectualism—and in many cases, this is perhaps an accurate characterization. But, they can also be understood as expressions of rationally grounded anxiety about the character of the bureaucracy we have today. Put simply, conservative skepticism over the bureaucracy is comprised of two interconnected parts. First, they fear that the bureaucracy we have is not sufficiently accountable to the people, either through their representatives in Congress, or through the constitutional office of the president. Second, conservatives fear that bureaucracies exercise far more power than is acceptable for unelected and unaccountable officials. Taken seriously, these are real concerns that deserve to be addressed.
Conservatives are, in fact, correct to point toward the need for an accountability in the national bureaucracy. During the debates at the federal convention of 1787, the word “responsibility” or some variation of it is used thirty-four times. With the exception of three instances, it always refers to the accountability of public officials (i.e. bureaucrats) to an elected branch of government. Furthermore, both the Federalists and Anti-Federalists agree that government administration needs to be “responsible to the people” in some way or other. According to the Federalists, administrative accountability was built into the Constitution through the office of the president. Presidents’ power to appoint officials would tie them inexorably to those officials’ decisions, and thus incentivize them to carefully monitor and manage bureaucratic activity. In essence, bureaucracy was made accountable to the people through the president’s desire to please the people. The Constitution structures power so that presidents are incentivized to keep careful watch over the bureaucracy to ensure that it acts in the people’s interest. More importantly, the accountability of the bureaucracy to the president helps to justify any kind of power that it may use. By anchoring the legitimacy of the administrative state to its oversight by the president, the Constitution allows for a significant degree of bureaucratic authority. As long as the exercise of that authority is authorized by either Congress or the president, then we can rest easy knowing that the president can and likely will act to reign in any potential abuses.
Of course, it is unrealistic to expect modern presidents to keep careful watch over the myriad of federal agencies. Such a task is so gargantuan that it would undoubtedly result in the president doing little else. Yet, in the absence of any other constitutional means of overseeing the bureaucracy, and the lack of any kind of workable alternative, it remains—at least somewhat—reasonable to expect the president to act as the primary vehicle of bureaucratic accountability. This is the position that conservative proponents of the unitary executive theory advocate for today. These conservatives want to expand the president’s power to oversee the bureaucracy by removing civil service protections, and legitimating other means of unilateral presidential action to reign in and control potentially rogue bureaucrats. At the same time, many on the left are understandably skeptical about the authority that such a method of oversight would grant the president. These figures tend to take a more positive view of the bureaucracy, and even suggest that America’s problem is not lack of bureaucratic accountability, but an overabundance of it. Their solution to the problem of bureaucracy is not to attempt to reign it in, but to let it loose so that it can do what it was meant to do more effectively.
I want to suggest that the debate between liberals and conservatives about the question of bureaucratic accountability rests on a set of fundamental misunderstandings about the nature of American constitutionalism. Both sides assume that the modern bureaucracy exists outside of the constitutional order to some degree. Indeed, their opposition to or support of the bureaucracy is in some ways contingent upon this assumption. What both sides fail to acknowledge is the possibility that bureaucracy does in fact fit within the constitutional order, and that our understanding of its position can help us more effectively manage it in a way that benefits the nation as a whole.
The source of this misunderstanding is, in large part due to an error in civic-education. Most Americans view the separation of powers as “separate institutions sharing power.” This vision of separation of powers suggests that the three branches divide an amorphous mass of government power equally between themselves. Think of a pie chart, equally divided into three parts. Consequently, most Americans understand their government as inefficient by design as no one branch is ever capable of exercising the majority of power on its own. Deadlock is built into the system, and so long as the branches disagree, nothing can get done. Checks and balances are effectively a system that prevents government action. Bureaucracy, seen as an institution existing outside this necessarily deadlocked scheme, appears rather attractive to those who are frustrated with lack of government action. Similarly, to those who appreciate the potential inefficiency as a means of preserving liberty from an overactive government, bureaucracy is a genuine threat. In either case, bureaucracy is understood as standing outside the constitutional order, even if some admit that the Constitution allows its existence.
But in reality, the separation of powers operates a bit differently. Rather than thinking of separate institutions sharing powers, we ought to envision the American system as one in which each branch possesses unique powers suitable for the performance of their respective functions. Each branch is supreme in their respective function—only Congress can pass laws, only the president can immediately respond to crises, and only the Court can decide particular cases. But they also possess the capacity to interfere with and partially perform each-other’s function. Hence Congress has the power to interfere with the way that crisis response plays out, the president can veto laws that Congress makes, and the Court exercises judicial review. Think of a three-part Venn-diagram, in which each circle partially overlaps. When we understand the separation of powers in this way, we see that American government is not a system of institutionalized deadlock, but rather a system in which different branches are suited to and empowered to deal with different challenges facing the polity.
When we understand separation of powers in this way—as separation of functions—we can more accurately understand the bureaucracy’s place within the constitutional order. Unlike the other three branches of government, the bureaucracy lacks an independent function. What the bureaucracy exists to do is instead dictated to it by the legislature and managed by the executive and the courts. The function of the bureaucracy fluctuates depending upon which agency we focus on, and what tasks that agency was assigned by Congress. In all cases, bureaucracy exists to assist the three constitutional branches of government with the performance of their respective functions. Bureaucracy performs tasks that take up time, involve little deliberation, but may demand a certain degree of adaptability. In this respect, bureaucracy cannot be seen merely as a tool for the other three branches to use—for one cannot expect a tool to operate independently of the hand that wields it. At the same time, because bureaucracy lacks an independent function of its own, we cannot properly identify it as a “branch” of government. Bureaucracy thus occupies a liminal space in American government, somewhere between tool and autonomous fourth branch. I propose that the most effective way to conceive of bureaucracy in the separation of functions system is not to view it as a structure or system apart—a separate pie chart, or a fourth interlocking circle on the Venn-diagram—but rather as a semi-autonomous system within the boundaries of constitutional system as a whole.
This visualization helps us to better understand both the potential and limits of bureaucratic authority. Bureaucracy possesses the autonomy it needs to perform the multifarious tasks assigned to it by the three branches, but not the authority to go beyond its task. It works best when it is overseen, but not micromanaged, and as such, it remains accountable without being incapable. Of course, reconceptualizing the bureaucracy does not fully solve the concerns that Sacks voiced on his podcast. Fortunately, it is not—at least here—my task to fully address these concerns. Instead, I merely hope to offer a clearer constitutional view of the position of the bureaucracy. In doing so, I hope to at least suggest a more stable position from which political solutions can be found. As with all things in American politics, a constitutional perspective should give us better view of the problem, and its solutions.