Raise your hand if you went to bed Tuesday thanking James Madison for the gift of separation of powers. For years, scholars and pundits have resented that gift, railing against the clunky, inefficient, and insufficiently democratic system as if it were an ill-fitting sweater—and one we had to wear every day of the year. They’ve looked overseas wistfully, wishing for what the other kids got: a parliamentary system in which popularly elected officials could actually get things done. Consider a Barack Obama without Mitch McConnell. A Bill Clinton without Newt Gingrich. A Ronald Reagan without Tip O’Neill.
In the afterglow of the presidential election, that old sweater is looking pretty sharp—and a good number of us are inquiring into the health and pugnacity of Chuck Schumer, the new Democratic leader of the Senate. He’s our Joe DiMaggio and Obi-Won Kenobi wrapped into one, as (at least half) our nation turns its lonely eyes to its only hope.
For better or worse, this isn’t Schumer’s battle—certainly not his alone. Indeed, it’s not only, or perhaps even principally, Madison’s original separation of powers that will sustain us amid calls for mass deportations, border walls, the targeting of Muslims, the dismantling of our environmental policies, and the gutting of national health care.
First, the bad news. I say this isn’t principally Schumer’s battle because Congress is rarely the most important game in town. The administrative state, that sprawling array of federal agencies, commissions, and bureaus, is the site of so much federal action. From healthcare to climate change to student loans to government surveillance, agencies are at the center of the action. What’s more, presidents have proven quite adept at using the administrative state to work around congressional obstructionism. Indeed, what Elena Kagan calls presidential administration might be one of the two most important developments in presidential governance over the past few decades. Starting with Ronald Reagan but really picking up during the Clinton and Bush (43) years, presidential administration has been elevated to an art form under President Obama.
Obama has been explicit and unapologetic in his efforts to bypass a truculent Congress, directing agencies to design and implement policies ordinarily (or at least preferentially) entrusted to Congress. Obama has instructed agency officials to effectuate his Clean Power Plan, to more fully regulate gun ownership, and to act upon his “deferred action” plan involving the non-deportation of undocumented children and families. In each of these instances Obama made clear that congressional obstruction is no barrier. In fact, in 2013 he used his grandest stage, the annual State of the Union Address, to make clear his willingness to bypass Congress. “If Congress won’t act soon… I will. I will direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”
As you well know, the administrative state is vast and powerful. There is good reason to believe that many, if not most, presidential priorities (of practically any political valence) can be advanced through those agencies which, over the years, have acquired heaps of discretionary authority and benefitted from healthy doses of judicial deference. Just as Obama bypassed McConnell, Trump will have no problem sidestepping Schumer, who doesn’t even have the benefit of leading a majority caucus.
But now the good news. Those agencies aren’t presidential fiefdoms. They are, themselves, embedded in a secondary scheme of administrative separation of powers, where power is divided—triangulated—among presidential appointees, politically insulated civil servants, and the public writ large authorized to participate in most administrative matters. This was a rude awakening for General-turned-President Dwight Eisenhower, whose entire pre-presidential life was structured by a clear and unquestioning chain of command. It was even a rude awakening for Obama, sued by his own homeland security agents for instructing them to ignore congressional directives. And this will be a fantastically rude awakening for President-elect Trump, CEO of Trump Organization whose most famous pre-presidential slogan was “you’re fired.”
Consider the civil service. Our professional, politically insulated civil service is ostensibly well positioned to limit presidential overreaching. Presidential appointees are insufficiently numerous and often insufficiently sophisticated to unilaterally make policy. Instead they necessarily rely on career officials who possess the requisite expertise and bureaucratic know-how to get things done. Unlike agency heads, these officials do not serve at the pleasure of the president. Moreover, as unelected and, increasingly, beleaguered bureaucrats, they tend to traffic in reasoned, principled decisionmaking both out of professional obligation and in order to justify their raison d’être in a democratic republic.
The civil service thus can (and should) be seen as a weighty institutional rival to presidential appointees, well situated legally and culturally to resist or stealthily reshape policies they find unreasoned or unlawful. Because of their political insulation and long-term job stability, the civil servants are anything but true subordinates—certainly nothing like Trump’s apprentices. Instead, as scholars such as Neal Katyal, Gillian Metzger, Eric Posner, and Paul Verkuil also recognize, they can be formidable counterweights, with a deep reservoir of technocratic skills and administrative ingenuity to influence, if not dictate, substantive outcomes. (That’s not to say they’re perfect or even particularly potent. But I’ll get to that later.)
Let’s consider, too, the role played by civil society. Members of the public enjoy the legal authority to, for instance, obtain agency information, petition for a new rule or for a change to an existing rule, intervene in adjudicatory proceedings, and comment on a pending rule. Studies show that members of the public do indeed play a significant role in getting proposed rules on the administrative agenda and then massaging those and other rules’ substantive content during the open comment period. Aggrieved members of the public may seek judicial remediation, challenging agency officials for failing to attend to their requests or comments or for acting in a procedurally impoverished, substantively unreasonable, or legally erroneous fashion. Thus agency heads and civil servants who fail to take seriously petitions for rules or who disregard material comments on already proposed rules risk judicial sanction. (Here too, I would caution that I’m speaking of a rather stylized—engaged and vibrant—civil society. The reality often falls far short, as I will discuss later.)
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This secondary system of administrative separation of powers redeems and refashions Madison’s original constitutional scheme. One of the abiding constitutional challenges to the administrative state is that the administrative state concentrates that which the Framers labored to disaggregate—namely, legislative, executive, and judicial power. But the fear of concentrated power—and the corresponding fear of abuse, tyranny, and the like—is attenuated by the fact that administrative power is, in fact, itself disaggregated, divided among the aforementioned trio of actors who, as I argue elsewhere, actually resemble the three great branches in important ways.
While it is true that the administrative state was conceived largely to overcome the conflicts and inefficiencies baked into the constitutional separation of powers, what ultimately (and ironically) helped legitimize the otherwise menacingly consolidated administrative state was the reaffirmation and renewal of the constitutional tripartite scheme and the substantive and procedural values that support it.
In short, it is a good week for the separation(s) of power, those that operate between and among the constitutional branches, and those that operate within the administrative arena.
That all said, I don’t want to overstate the work that administrative separation of powers can do, particularly given the demoralized, battered state of the American federal civil service and the uneven nature of public participation in administrative affairs. In a follow-up post, I will discuss the second, and related, of the two most important trends in presidential governance—that of running government like a business. There I will show how this businesslike pivot has undermined the administrative separation of powers and thus jeopardized (in this most challenging of moments) our larger constitutional commitment to separating and checking State power in whatever form that power happens to take.