The Powers of the Modern Administrative Government

While reading Francis Fukuyama’s recent essay series on “The Deep State,” one quip from the 1983 Supreme Court case INS v. Chadha kept coming to my mind: “The Framers ranked other values higher than efficiency.”

The Constitution’s Framers were not infallible, but in designing our governmental structure, they struck a sustainable balance between efficiency and constraint. This is what James Madison was getting at in Federalist No. 51 when he wrote that “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Government must be capable yet constrained.

The Framers grasped the importance of capacity in government. They had lived through what Madison and Hamilton often derided as the “imbecility” of the Articles of Confederation. Under the Articles government, the abysmally weak central government had no independent authority to enforce its legal mandates; its effectiveness (or lack thereof) lay in the hands of the states. This did not pan out well, as debts mounted, the economy stagnated, and the fledgling nation failed to live up to its international obligations.___STEADY_PAYWALL___

The correspondence between national elites like Washington, Madison, and Hamilton evinced an urgency for intervention. Washington worried: “Thirteen sovereignties pulling against each other, and all tugging at the foederal head will soon bring ruin on the whole . . . . ” To ward off disaster, Washington vigorously supported a “liberal, and energetic Constitution, well guarded, & closely watched, to prevent incroachments [on federal authority by the States],” which promised to “restore us to that degree of respectability & consequence, to which we had a fair claim, & the brightest prospect of attaining.”

The newly created federal government was undoubtedly energetic. Armed with an executive and its very own judicial branch, its power could operate directly on individuals. Its effectiveness no longer hinged on the whims of the sovereign states.

Although the federal government the Framers created did have tremendous capacity, it was also subject to limits. The legislative branch was vested with particular enumerated powers (emphatically not a plenary grant of power), but also the power to make laws “necessary and proper” to carry those powers into effect. Congress could coin money, for example, but that would be an empty letter if it were not otherwise empowered to also do all the things necessary to coin money. Similarly, the newly created Supreme Court was vested with the “judicial power”—an awesome power that the Court would later famously describe as the power “to say what the law is”—but only in a particular set of cases (such as those arising under federal laws and disputes between citizens of different states).

Power was paired with restraint. As Madison, initially one of the most strident defenders of federal power, later remarked: a “distrustful precaution” was “interwoven in the Constitution.” That precaution was itself grounded in a hard-headed assessment of human nature, for “what is government itself, but the greatest of all reflections on human nature?”

Time and time again, the Framers—the very ones who had chafed at the debilitating weaknesses of the Articles of Confederation government and who were so committed to creating a government that could actually function and serve the nascent nation’s needs—stressed the importance of observing constitutional limits.

This was quite true in how they discussed how best to interpret the Constitution. Madison wrote that “whilst [the Constitution] remains as it is, its true import ought to be faithfully observed; and those who have most to fear from constructive innovations ought to be most vigilant in making head agst. them.” Similarly, Thomas Jefferson intoned: “in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

My point is this: on the whole (there was plenty of internal disagreement, of course), the Framers were committed supporters of governmental capacity and constraint. They held both ideals in their heads at the same time. To steal a phrase from the ever-quotable Justice Robert Jackson, the Framers did not craft a Constitution that was a “suicide pact.” But they did create a pact. They emphatically did place meaningful constitutional constraints on government.

Which brings me back to Professor Fukuyama’s recent series of important essays on the administrative state.

One can acknowledge the existence of modern administrative government—indeed, one can be grateful for its existence in large part—while simultaneously realizing that human nature is the same today as it was in 1789, such that the Framers’ insight regarding the need to constrain power with the force of law retains its relevance.

Once power is restrained by law, it is incumbent upon us to observe those legal limits while they remain in place. If we do not like those limits (say, if we think they are no longer necessary), we may discard them—but only by way of the permissible legal procedures for doing so. We cannot pretend they are not there.

Professor Fukuyama provides a wealth of insights drawn from political science, organizational theory, and his own personal experiences relating to optimal bureaucratic governance. But if those insights do not exactly align with, say, the thrust of the constitutional “nondelegation doctrine” that I discussed in a prior American Purpose piece, that does not warrant pushing aside such legal arguments—that is, constitutional arguments—as simplistic or short-sighted. (Arguing the doctrine’s legal merits, of course, is another matter.)

Modern administrative regulation raises many of the very same questions the Framers were asking themselves when they scrapped the hapless Articles of Confederation and created our Constitution: How much power should be granted to those doing the governing? How should they be controlled? The Framers enshrined their answers to these questions in the Constitution. Today their answers remain relevant, to say the least.

In fact, constitutional questions (which are themselves often hotly debated) should be the first questions we ask before we discuss policy questions about efficiency and democratic control in the context of administrative law. When grappling with the proper scope of policymaking authority exercised by the administrative state and the degree of flexibility it ought to enjoy in crafting such policy, we should first ask whether what we are proposing is legal, and not shunt aside that inquiry as misguided.

Asking the hard constitutional questions generated by the rise and spread of the administrative state is not unsophisticated. Instead, this approach squares with a core insight of the Framers, as I have described it in this essay: robust governmental power is essential, but it must be paired with constraint. The most potent means by which we constrain the power of government is through law, and the highest law is that of the Constitution. Observing constitutional restraints is not naïve; doing so recognizes the unbending realities of human nature—the very realities with which the Framers sought to align our constitutional plan.

Thomas Koenig, a contributing editor of American Purpose, is a student at Harvard Law School and author of “Tom’s Takes” newsletter. Twitter: @thomaskoenig98

Image: A statue of the goddess Themis outside of a law court. (Flickr: Rae Allen)