The Rule of Law – Part 12
How federal agencies have become laws unto themselves.
Continuing this essay series on the rule of law, in this essay we’ll explore how federal agencies have become laws unto themselves, using Supreme Court Justice Neil Gorsuch’s book Over Ruled: The Human Toll of Too Much Law.
As Gorsuch writes:
These days, federal agencies don’t just write and enforce legally binding rules. Often, they act as prosecutor and judge, too … Admittedly, if you are unhappy with an agency’s treatment of your case, and if you persist through all of its internal review processes, and if you have enough time and money, you can usually bring your complaint to federal court for review before an independent judge. But what are the chances of being able to endure and afford all that? … [S]uppose you receive a citation from an agency official and want to appeal. The agency judge might wear a robe and sit behind a bench. But often he is just another agency employee. Tomorrow, he could be transferred to another post—perhaps writing rules or enforcing them. Or he might end up moving into and out of the very industry whose cases he’s responsible for passing upon. Or maybe, too, agency bosses will signal displeasure if he doesn’t rule according to their expectations: promotions might be lost, cases might be shifted to others. As a former president of the American Bar Association once observed, “so long as [an agency] judge has offices in the same building as the agency staff, so long as the seal of the agency adorns the bench on which that judge sits, so long as that judge’s assignment to the case is by the very agency whose actions or contentions that judge is being called on to review, it is extremely difficult, if not impossible, for that judge to convey the image of being an impartial fact finder.” There’s more. The usual rules of evidence—including the rule against the introduction of hearsay—don’t always apply in agency adjudications. And private parties don’t always have a right to the discovery of relevant evidence. As Professor Philip Hamburger of Columbia Law School put it, “Whereas constitutional law has long given defendants evidentiary protections, the administrative tribunals ... flip[] these around to give the government special advantages.”
As we’re seeing today, and as we’ve explored in a previous essay series, even the President, under current law if not under the Constitution, can’t rein in unelected federal bureaucracies. As Gorsuch writes:
At this point you might ask: So what if all three major powers of government are often practically united in agency hands? Can’t at least our elected president oversee their work? After all, Article II of our Constitution vests the executive power in the president and makes him electorally answerable to “We the People.” As James Madison put it, the Constitution anticipates a “chain of dependence,” with “the lowest officers, the middle grade, and the highest ... depend[ ing] ... on the president, and the president on the community”— all so that the “chain of dependence”“terminates in the supreme body, namely, in the people.” It’s a nice theory. But over time, we have done much to sever Madison’s chain of dependence. It’s not just the result of the problems already discussed: the exponential growth of the executive branch and all the layers of bureaucracy now standing between a politically accountable appointee and the official who in practice calls the shots. Madison’s chain of dependence has also suffered because many “independent” agencies today (think alphabet soup: FTC, SEC, FCC, etc.) are, by statutory design, immune from normal presidential oversight. For that development, there may be many people to thank, but perhaps no one more than William Humphrey … In 1933, President Franklin D. Roosevelt took office after one of the largest landslide victories in U.S. history. By that time, Congress had already experimented with delegating vast powers to “independent” agencies. One of those agencies was the Federal Trade Commission, an agency President Woodrow Wilson helped create in 1914. The agency’s broad legislative mandate included, among other things, regulating “unfair” trade practices. By 1933, however, President Roosevelt considered the agency ripe for reform. Instead of providing expert conclusions free from politics, he thought the agency’s commissioners had become too friendly to business interests. In particular, one long-serving commissioner caught Roosevelt’s eye: William Humphrey. The President wanted him out … That summer, the President wrote a letter asking Humphrey for his resignation. But Humphrey refused to go … Humphrey responded by retaining the services of William “Wild Bill” Donovan. The pair argued that the FTC was supposed to be a body of experts insulated from politics. By law, a commissioner could be fired only for “inefficiency, neglect of duty, or malfeasance in office.” And the President’s discharge letter had not accused Humphrey of any of that. As Humphrey put it, “I feel exasperated that I should be removed for purely political reasons.” Humphrey fired off a furious letter to the President and set about filing a lawsuit. In the meantime, he continued to attend commission meetings and periodically filed demands for his unpaid salary. Even Humphrey’s death wasn’t enough to end his crusade. In 1934, his executor took over the case and sought Humphrey’s unpaid salary for his heirs. Eventually, the case made it all the way to the Supreme Court. Stanley Reed was the Solicitor General at the time, responsible for overseeing the government’s cases before the high court. Upon taking office, Reed visited with his boss, Attorney General Homer Cummings. Reportedly, Cummings advised Reed that “you are going to win some cases in the Supreme Court and you are going to lose some. For your first case, pick out one that you can win.” Reed chose Humphrey’s case. As Reed later explained, he thought it was a case that “couldn’t be lost” … It’s easy to see why Reed thought as he did. Only a decade earlier, the Supreme Court had decided a similar case called Myers v. United States. It, too, had involved a federal official who claimed the President had wrongfully fired him in defiance of laws designed to protect his independence. The case was so similar to Humphrey’s that, by the time it reached the Supreme Court, the official at the heart of the suit was dead and the only question that remained concerned whether his heirs were entitled to his salary. In Myers, Chief Justice (and former President) William Howard Taft wrote a definitive decision vindicating Madison’s chain of dependence. Under the Constitution, he explained, the chain of command in the executive branch must run inexorably upward to the president and from him to the American people. Perhaps experts can play a valuable role in advising policy makers. But without the power to remove those serving under him, the Chief Justice wrote, a president cannot “discharge his own constitutional duty of seeing that the laws be faithfully executed.” … Despite that landmark precedent, Reed’s battle with Donovan didn’t go as planned. In May 1935, the Court sided with Humphrey’s executor in an opinion written by Justice George Sutherland (who, incidentally, Reed later succeeded on the Court). Justice Sutherland dismissed much of Myers as nonauthoritative dicta and described the FTC as an “administrative body” that acts “in part quasi- legislatively and in part quasi- judicially” and therefore “cannot in any proper sense be characterized as an arm or an eye of the executive.”
That decision proved to be a disaster for constitutional government:
While the decision had its fans in some quarters, others had a hard time wrapping their heads around it. If the FTC wasn’t within the executive branch, in which of the Constitution’s three branches did it reside? How can an agency exercise “quasi-legislative” and “quasi-judicial” powers without having to follow the Constitution’s provisions governing the exercise of the legislative and judicial powers? And how can any agency do all that free of presidential oversight and thus electoral accountability to the American people? … President Roosevelt appreciated that the Court’s new approach threatened to leave agencies not only with largely free rein from Congress, but with little presidential oversight. As he put it in a 1937 report to Congress, “the practice of creating independent regulatory commissions” was “threaten[ing] to develop a ‘fourth branch’ of the Government for which there is no sanction in the Constitution.” … Thomas Sowell, a conservative thinker, argued that “it is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.” … President Harry S. Truman once grumbled that “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.” On getting ready to hand over the keys to the White House, he reportedly added about his successor, “He’ll sit here and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army.” … In 1938, a committee of the American Bar Association (ABA) chaired by Roscoe Pound, a former dean of Harvard Law School, issued an influential report. The report did not shy away from what it thought of these developments. It called the idea of leaving so much responsibility to the “professed ideal of an independent commission of experts above politics and reaching scientific results by scientific means” a dream that bears “no correspondence with reality.” All forms of governmental power, the report argued, are susceptible to error and abuse and demand checks and balances. Nor, as the ABA committee warned in an earlier work, should we “have some 73 ... courts in Washington, most of them exercising legislative and executive as well as judicial powers. A man should not be judge in his own case and the combination of prosecutor and judge in these tribunals must be relentlessly exposed and combated.”
But President Woodrow Wilson thought otherwise, and welcomed the new regime in which government “experts” could unilaterally impose rules. As Gorsuch writes:
[I]f any one person deserves credit for getting the ball rolling, it might be Woodrow Wilson. As a young academic, Wilson wrote an article in 1887 that later helped earn him the nickname “the father of public administration.” In it, he argued for a new “science of administration” that would “straighten the paths of government.” In his diary, for example, he complained that “universal suffrage is at the foundation of every evil in this country.” And over the course of his career, he opposed female suffrage, supported Jim Crow laws, and tolerated segregation by his cabinet secretaries in their departments. To Wilson, the answer to the United States’ governance problems lay in new administrative structures largely insulated from democratic influence, ones that would “deliver us from the too great detail of legislative enactment” and “give us administrative elasticity and discretion.” If Wilson’s ideas were highly influential, they were also pretty revolutionary. The founders knew that men are not angels and we are all individually prone to error. But their answer to that dilemma was very different from Wilson’s. In 1907, Francis Galton observed that at a county fair the average of all the entries in a “guess the weight of the ox” contest proved remarkably accurate. It beat not just nearly all individual entrants’ guesses but also those of “cattle experts.” Today, that observation is captured by the phrase “the wisdom of crowds.” That was the sort of wisdom the framers sought to capture in the representative democracy they built. What about efficiency? It’s not as if the framers failed to consider the need for efficient administration. They vested responsibility for enforcing the law in a single president rather than a committee in part for just this reason. Without having to consult others, they thought, a single president would enjoy the power—and be unable to hide from the responsibility—of vigorously enforcing our laws. But to the framers, the creation of laws called for a very different sort of leadership. Before asking a vigorous executive to enforce any new law, the framers thought a slow and careful process in order, one designed to protect minority voices and capture the wisdom of the people. Nor was the framers’ design just about optimizing decisional outcomes. As they saw it, the people have a right to make the rules governing their lives through their elected representatives. And any system of lawmaking that neglected this right would tend to invite contempt for the law itself to “steal[] into the hearts of the people.” In this nation, as the Declaration of Independence put it, government was to derive its just powers from the consent of the governed.
But aren’t “experts” inherently a good thing? After all, they’re “experts.” As Gorsuch explains:
What about Wilson’s idea that administrators can help us avoid the need for cumbersome lawmaking processes thanks to their unbiased, apolitical scientific expertise? As Justice Elena Kagan observed before assuming the bench, that notion “today seems almost quaint.” It’s easy to imagine the framers would have found Wilson’s thoughts on the subject pretty quaint, too. The framers acknowledged a few self-evident truths in our Declaration and the Bill of Rights. But beyond that, they knew, there lies a vast number of policy questions on which even reasonable and well-informed minds will disagree. Rather than build a government premised on the assumption that elites can and will apolitically discern for us all a single right answer to a particular policy question, the framers thought it safer and more consonant with human nature to proceed on an assumption that those who participate in government will be ambitious for power—and that their ambitions should not be efficiently unleashed but always checked and balanced.
The problem with “experts” is that they usually think, erroneously, that they can single-handedly do a better job coming up with the rules than other citizens can collectively:
In 1945, Friedrich Hayek posed the same question Wilson had more than a half century earlier: “Who is to do the planning” for society? He offered a more nuanced answer: while acknowledging that experts have an important role to play in advising lawmakers and implementing the policies they select, Hayek insisted that the “scientific knowledge[] [that] occupies now so prominent a place in public imagination ... is not the only kind that is relevant.” We should remember that another kind of knowledge is critical, too: “The knowledge of the particular circumstances of time and place … We need to remember only how much we have to learn in any occupation after we have completed our theoretical training, how big a part of our working life we spend learning particular jobs, and how valuable an asset in all walks of life is knowledge of people, of local conditions, and special circumstances.”
Even modern-day Democratic leaders have recognized this problem. As Gorsuch writes:
In his 2011 State of the Union address, President Obama spoke of the growth of federal administrative agencies in recent years—and by implication the difficulty any president faces in trying to oversee it all. The President observed that we now have 12 different agencies that deal with exports and at least 5 responsible for housing policy. He added, “The Interior Department is in charge of salmon while they’re in fresh water, but the Commerce Department handles them when they’re in saltwater. I hear it gets even more complicated once they’re smoked.” Thinking the President had exaggerated, fact-checkers busily got to work. In the end, they rated his statement “mostly true”—but only because it “unders[old] the complexity.” … The academic and author Edwin J. Feulner, Jr., once argued that Hayek’s “greatest contribution lay in the discovery of a simple yet profound truth: man does not and cannot know everything, and when he acts as if he does, disaster follows.”
A regime of “experts” has led to the proliferation of criminal law written not by elected legislators, but unelected bureaucrats. As Gorsuch explains:
Once, our criminal laws were reserved for enforcing a relatively small number of pretty intuitive and widely accepted norms: do not kill, do not steal, do not rob, and so on; conduct, as the legal scholar Henry M. Hart, Jr., once put it, that deserves “a formal and solemn pronouncement of the moral condemnation of the community.” Today, we have strayed far from that ideal. Looking at the growth of our criminal laws, Professor Douglas Husak estimates that 70 percent of adult Americans today have committed an imprisonable offense—many, maybe most, without even knowing it. That estimate might be conservative. The attorney and journalist Harvey Silverglate has argued that the average American now commits three felonies a day … Congress has increasingly delegated its criminal lawmaking powers to executive agencies. Now, many criminal laws are not the direct product of elected representatives accountable to us; they’re the handiwork of agency officials … Nor does anyone have a clue how many federal regulatory crimes are out there. As we have seen, the best anyone can do is guess that they number over 300,000 … [Even] [t]he Department of Education, whose mission is to “promote student achievement,” once noted on its website that it has agents who “exercise full law enforcement authority—carrying firearms, taking sworn statements, applying for and executing search and arrest warrants.”
The complexity of the law has even confused federal agencies themselves:
According to congressional testimony, the Environmental Protection Agency once created a hotline to field questions about a particularly complex law governing the disposal of hazardous waste. But there was a catch. The agency said it couldn’t guarantee the accuracy of its advice, and prosecutors said that reliance on the agency’s incorrect information wouldn’t qualify as a defense. Another agency, the Internal Revenue Service, for a period gave wrong answers about a third of the time to callers on its hotline. When asked about its error rate, agency officials reportedly, and without a hint of irony, “pointed to the growing complexity of the nation’s tax laws and the numerous and rapid tax-code changes that have been made in recent years.”
In the next essay in this series, we’ll explore the human costs of excessive legal complexity.