I admire the spirit of Philip Wallach’s essay. Excepting his rather defensive one-liners about the professors of administrative law, he tries to put a range of views about the administrative state in their best light, mining truth from wherever it lies and proposing a middle way of incrementalist legislation to discipline the bureaucracy. It therefore feels almost churlish to argue, as I will, that there is no need for even a moderate solution because there is no demonstrated problem to begin with.
Although the spirit of the essay is admirable, the substance is weak. Three concepts are indispensable to any discussion of a putative “legitimacy crisis” in the administrative state: delegation, the presidency, and welfare, in the sense of well-being. None of these essential concepts appear in Wallach’s essay (and although there is some discussion of some of them in the longer companion paper, that discussion does not squarely address the points I will make here). When we do consider them, talk of crisis doesn’t look evidence-based; it is hardly obvious that there is any widespread illegitimacy afflicting the administrative state to begin with, whether we understand legitimacy in normative or positive terms or both. Wallach observes that “[w]e live in a democracy full of fellow-citizens who think that ‘crucial functions’ [of government] are very extensive indeed,” an observation that strikes me as entirely correct, but that also sits very uneasily with his initial premise that a legitimacy crisis even exists. Given Wallach’s observation, it seems that the administrative state is pretty much what our republic wants.
Let me take up the three concepts in turn.
From a lawyer’s perspective, many critics of the administrative state are oddly hazy about its constitutional origins. It is somehow just there, looming ominously over the constitutional order. From the more feverish of the critics one gets the impression that the federal bureaucracy was imposed by a Stuart monarch, or at best by Franklin Roosevelt, acting extra-constitutionally. The haze contributes to the suggestion of illegitimacy, as though the administrative state were an alien construct.
In fact the administrative state is almost entirely the creature of Congress, acting through the constitutionally prescribed processes of lawmaking. This is conventionally called “delegation” to agencies, but it is delegation of statutory authority, not delegation of Congress’s own legislative powers, as I will explain shortly. Federal agencies, with a few exceptions related to the President’s core constitutional powers, are entirely creatures of statute; they are brought into being by legislation, given their powers by legislation, and constrained by legislation – including constraints that appear not only in the agency’s organic statute, but in the Administrative Procedure Act. (Not to mention constraints stemming from relevant constitutional provisions, such as the Due Process Clauses of the 5th and 14th Amendments.)
One sometimes encounters the suggestion that Congress has unconstitutionally “abdicated” to the administrative state; and if the author is especially overheated, references to the Reichstag’s Enabling Act of 1933 will start flying about. Nothing could be farther from the truth. As Jerry Mashaw has shown, the creation of the administrative state has been a long-term, consistent, bipartisan project of the Congress as an institution, initiated more or less co-terminously with the birth of our Republic (the First Congress delegated wide powers to the President). That project has included an enormous amount of shaping and constraining of agencies, abolition of agencies that have outlived their usefulness, and oversight of agencies to check their excesses. This is no abdication of Congress’s functions, but a deliberate, sustained, and nuanced exercise of those functions. If the administrative state were somehow abolished tomorrow, Congress would in all probability start laboring to re-create it, in a cycle of eternal recurrence.
In a more formalist vein, a bad argument circulates to the effect that by creating and empowering agencies, Congress has delegated away its own legislative powers, in violation of the principle that delegata potestas non potest delegare: a delegate (Congress, given its powers by the sovereign people) cannot redelegate (to the President and the agencies). But it has never been the theory of American law that Congress gives away legislative power whenever it grants statutory authority to agencies, although if the grant is excessively broad or vague, and thus lacks an “intelligible principle” to guide administrative discretion, a genuine problem of unconstitutional delegation may arise. In the normal case, agencies acting within the boundaries of their statutory authority exercise executive power, not legislative power. As the rabid liberal and statist Antonin Scalia wrote on behalf of the Supreme Court, “agencies make rules and conduct adjudications and have done so since the beginning of the Republic. These activities take ‘legislative’ and ‘judicial’ forms, but they are exercises of — indeed, under our constitutional structure they must be exercises of — the ‘executive Power.’” Scalia’s opinion here is no outlier; with the arguable exception of Justice Thomas, no modern Justice has fundamentally contested the legitimacy of delegation, whatever their complaints as to particulars. Its basic validity commands assent from Ginsburg to Alito. And the Court has invalidated delegations only twice in its history, both in 1935.
The larger significance of delegation is that arguments in praise of Congress and classical lawmaking are themselves arguments in praise of the administrative state. It is not as though the administrative state was created against Congress’s wishes (how? by whom?). Whatever legitimacy Congress possesses transfers to the agencies. If we think that Congress possesses unique deliberative capacities, or uniquely representative properties, we should also think that Congress will delegate when it makes good sense to do so, after well-conducted deliberation and in an appropriately representative way. It is the strangest thing in the world to see critics of the administrative state turn around and praise Congress’s special qualities as a lawmaker, and call for a reinvigoration of Congress’s constitutional role – apparently not realizing that delegation is itself just one more species of lawmaking, one more tool in Congress’s toolkit, so that any argument for Congress’s special capacities is an argument that it should be entrusted with the power to delegate. When Wallach works around to his main positive suggestion for disciplining the bureaucracy – “show that Congress can actually do the work of an intermediary rather than just telling people it is meant to play this role [which] means doing the work of incremental legislating” – he doesn’t seem to realize that delegation just is a common form of incremental and disciplinary legislation. Very few or no statutory delegations are blank checks; as the political scientists have discussed, Congress almost always delegates under substantive and procedural constraints, expanding or contracting agency authority incrementally.
Wallach says essentially nothing about the presidency and its role in the administrative state. Again this is, I think, a symptom of haziness and abstraction about what exactly the subject of discussion really is. The executive establishment of the United States is internally complex. It includes line agencies in the executive hierarchy, either within or without the Cabinet departments; independent agencies; the multifarious Executive Office of the President; and the vast shadowland of quasi-public bodies and government corporations. In this world, the Presidency plays an essential coordinating and supervisory role, sometimes as overseer, sometimes as decider. Even as to the independent agencies, the President’s views are influential, and his power to appoint agency heads is eventually decisive. Most broadly, as Max Weber argued long ago, an independently elected President is one of the great constitutional checks on the bureaucracy. By shaping and constraining the behavior of the administrative state, the President contributes to and helps to ensure its legitimacy, transferring to it his own legitimacy as the sole elected official with a colorable claim to represent the nation as a whole.
We have, then, an administrative state that has been created and limited by the sustained and bipartisan action of Congress and the President over time; that is supervised and checked by the President as it operates; and that has been blessed by an enduring bipartisan consensus on the Supreme Court. The classical Constitution of separated powers, cooperating in joint lawmaking across all three branches, itself gave rise to the administrative state. When critics of the administrative state call for a return to the classical Constitution, they do not seem to realize they are asking for the butterfly to return to its own chrysalis. If political legitimacy is not to be found in this long-sustained and judicially-approved joint action of Congress and the President, the premier democratically elected and democratically legitimate bodies in our constitutional system, then legitimacy resides nowhere in that system, and the real complaint of the critics is not that the administrative state is illegitimate, but that our whole constitutional order is intrinsically misguided.
Happily, however, things are not so bleak. What, after all, is the evidence that a legitimacy crisis afflicts the administrative state? Legitimacy is a protean concept, but unless we are willing to subscribe to a strictly normative conception of legitimacy – which would have the odd consequence that the administrative state might be stamped “illegitimate” even if almost everyone likes it – we will have to admit that deep, widespread and sustained popular approval of the administrative state contributes to legitimacy. And then it becomes clear that whether we look at a short time-scale or a long one, the broad mass of the citizenry seems quite pleased indeed to live in an administrative state. (It is thus no accident that Congress and the President are as well).
In the short run, the probable nominees of both major parties are strong advocates of the administrative state; indeed a decent description of the Trump phenomenon is that a large fraction of Republican voters have rebelled against the libertarian, doctrinaire hostility to the welfare state propounded by Republican elites. A nation that twice elected Barack Obama by clear margins is a nation comfortable with technocratic governance. In a longer-term perspective, both parties, including presidents of both parties, including Ronald Reagan, have been enthusiastic promoters and protectors of the administrative state’s major accomplishments, including clean air, clean water, Social Security, and product safety. Internationally, the evidence suggests, happiness is strongly correlated with a robust welfare state, one that constrains the role of markets and that alleviates the main sources of anxiety in the citizenry’s lives – health care, educating their children, safety in both physical and financial senses. Well-being, including citizens’ subjective sense of well-being, evidently inclines them in favor of robust social welfare. Far from facing a crisis of legitimacy, the administrative state goes from strength to strength.
In the companion paper to his essay here, Wallach cites survey evidence suggesting that the American citizenry is dissatisfied with (1) “government” generally, (2) Congress, and (3) democracy. Putting aside the inherent limitations of such surveys, which can capture gripes and venting that would never result in support for tangible action, none of these findings bear directly on the legitimacy of the administrative state. The first is too general and abstract; the second actually works against Wallach’s own argument, insofar as his proposal is for a return to Congressional lawmaking of a certain incremental sort; and the third is entirely consistent with a preference for technocracy, and thus is no evidence of opposition to the administrative state. What “legitimacy crisis” is there, anyway? Before we have a long conversation about solutions, let’s figure out whether there is a problem.