Valuing the Deep State Part V: Controlling the Administrative State

The full compilation of Francis Fukuyama's Valuing the Deep State series can be accessed here.

Many conservatives argue today that Americans are living under the tyranny of an out-of-control administrative state, in which unelected bureaucrats together with their allies in the courts make critical decisions affecting their lives. There are in fact any number of ways by which political principals control bureaucratic agents. The real problem is rather different: Democratically elected legislators want the government to do things, without issuing clear mandates as to how that is to be done, and they fail to use the controls available to them. The bureaucrats are then left to fill in the gaps on their own.___STEADY_PAYWALL___

Kate Bersch of Davidson College and I have written an article for the Annual Review of Political Science on how to measure bureaucratic autonomy. This came out of the Governance Project that I have been leading at Stanford University since 2011, which has sought to come up with better measures of state capacity. We wanted to capture Weberian aspects of bureaucratic quality like autonomy and meritocracy that were often passed over in existing measures, and contributed to a survey instrument developed by the Global Survey of Public Servants in collaboration with a number of other academic institutions.

Kate and I realized that we couldn’t adequately measure bureaucratic autonomy because we didn’t have a theory of what bureaucratic autonomy was. So in the course of writing the article we dove into the academic literature in administrative law to understand how political principals control bureaucratic agents in the United States. The United States has perhaps the longest and most extensive set of controls over its bureaucracy, and we thought it could serve as a template for measuring other executive branches.

There are five basic mechanisms by which political principals control bureaucratic agents in the United States. These mechanisms include:

1.   ex ante procedural limitations on discretionary authority;

2.    ex post review;

3.    appointment and promotion power;

4.    removal power; and

5.    ad hoc interventions by political authorities into bureaucratic decision-making, including the use of emergency powers.

In addition, political principals control bureaucracies through their power over the budget, but we regard this not as a separate mechanism but rather a component of each of the other five. We can sketch each one briefly here.

Ex ante procedural controls. The primary control over bureaucratic behavior was the landmark 1946 Administrative Procedure Act, which mandated that any new rule proposed by the bureaucracy be publicly posted and subject to notice-and-comment. New rules would have to take these comments into account, and could be contested ex post through a system of administrative law judges (ALJs). In addition, Congress often mandates that agencies write detailed enabling legislation circumscribing their powers. For example, the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act enjoined a series of regulatory agencies to write hundreds of new rules strengthening the federal oversight of financial institutions in the wake of the 2008 subprime crisis.

Ex post review. In addition to ALJs, there is a huge body of law surrounding ex post judicial review under the heading of Chevron Deference. This arose out of the 1984 Supreme Court decision Chevron USA, Inc. v. Natural Resources Defense Council and created a two-step rule under which the Court first decided whether the legislative statute clearly specified the nature of the delegated authority. If the law was ambiguous or unclear, the Court would move to the second step; if the agency judgment was considered a reasonable interpretation of the statute, the court would defer to it. The court moreover created a “major questions doctrine” exempting certain cases from the general rule. Conservative justices (including Clarence Thomas and Neil Gorsuch) have expressed reservations about the Chevron framework, arguing that it wrongly cedes judicial authority to the executive and violates separation of powers. In its June 2022 ruling West Virginia v. Environmental Protection Agency, the Supreme Court expanded the scope of the major questions doctrine, but left intact the Chevron Deference itself, for the time being.

Appointment power. Article II of the Constitution endows presidents with “executive power,” charges them to “faithfully execute the laws,” and allows them to demand “written opinions” of high officials. Congress for its part is given the power to vest the appointment of “inferior officials” (the definition of which is not clearly stated) in some other part of government.

Drawing on the latter provision, a second major mechanism for limiting the President’s appointment power involves extensive rules for the hiring and promotion of lower level officials. The most important such legislation was the 1883 Pendleton Act mentioned in my previous post, which created the U.S. Civil Service Commission and mandated a system of merit-based hiring and promotion.

Removal power. The central fight being waged by conservatives today is over expansion of removal power, that is, the power of political principals to fire lower level officials. They argue that the federal bureaucracy is filled with left-learning Democrats and that they cannot exercise political control unless they can purge them.

While it might seem that a president’s powers to appoint and remove executive branch officials are equivalent, they have never been treated as such since the founding of the Republic. The Constitution specifies the president’s power to appoint high officials with the advice and consent of the Senate, yet is silent on removal. The first Congress engaged in a sophisticated debate over removal power, ultimately granting that power to the president alone in something that came to be known as the Decision of 1789. James Madison and others argued that while Senate refusal to approve a presidential appointment limited the chief executive’s power, the president could always simply appoint another person. The inability to remove a recalcitrant official, by contrast, constituted a much more significant limitation of executive power.

Discretionary removal power came to be limited after World War II with expansion of a federal employee’s ability to contest removal from office through an administrative or judicial process. Precedent for formal appeals of removals was set first for veterans, then for the federal workforce more broadly. Removals became so procedurally difficult that many political principals avoided them, thereby decreasing political control over bureaucratic behavior. Conservatives want to weaken those procedures and shift to at-will hiring and firing.

Ad Hoc Interventions and Emergency Powers. A final category of political control over bureaucracies concerns ad hoc interventions by political officials into the decision-making processes of bureaucracies. These interventions can either be legal, with all parties operating within their legislated mandates but violating established norms controlling their use, or illegal and/or unconstitutional.

With regard to legal interventions, the U.S. Constitution gives presidents certain extraordinary powers, most notably as Commander-in-Chief of the armed forces and pardon power. Former President Donald Trump made full use of these powers, for example by pardoning former Navy SEAL Eddie Gallagher who had been court martialed in a procedure strongly supported by the Navy hierarchy. While Trump had a legal right to make this decision, he violated a longstanding norm that deferred to the military hierarchy on issues of military justice.

In addition, President Trump sought to use illegal means to stay in office as president, as detailed by the January 6 Committee.

The current attack by conservatives on the administrative state builds on the established framework of American administrative law. The two chief lines of criticism concern Chevron Deference, which they argue unconstitutionally cedes too much power to the executive branch, and removal power, which is based on the Pendleton Act and is itself unconstitutional as it usurps the executive's inherent powers. I will deal with these two rather inconsistent lines of argument in next week's post.

Francis Fukuyama is chairman of the editorial board of American Purpose and Olivier Nomellini Senior Fellow and director of the Ford Dorsey Master’s in International Policy program at Stanford University’s Freeman Spogli Institute for International Studies.

The full compilation of Francis Fukuyama's Valuing the Deep State series can be accessed here.

Image: An engine order telegraph. (Flickr:wicker_man)