Bureaucracy

views updated

BUREAUCRACY

The Constitution creates an executive branch that neatly fits into the separation of powers and checks and balances system that the Framers devised. But the Constitution does not explicitly provide for the kind of administrative branch, or bureaucracy, that evolved beginning in the late nineteenth century. Congress created both independent commissions, such as the Interstate Commerce Commission (established in 1887), and other executive agencies that regulated a wide range of economic activities, and delegated to those bodies the authority both to make law through rule-making and to adjudicate cases arising under their jurisdiction.

The Framers of the Constitution understandably did not foresee the development of an executive branch that would be a dominant force in lawmaking and adjudication, functions that they expected to be carried out by Congress and the courts. They conceived of "administration" as the "mere execution" of "executive details," to use alexander hamilton's description in the federalist #72. Article II makes the President chief executive by giving him the responsibility to "take care that the laws be faithfully executed." He has the authority to appoint public ministers and other executive branch officials designated by Congress, subject to the advice and consent of the Senate. He may "require the opinion in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.…" Hamilton concluded in The Federalist #72: "The persons, therefore, to whose immediate management the different administrative matters are committed ought to be considered as assistants or deputies of the Chief Magistrate and, on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence."

Hamilton thought, as did most of the Framers, that the President would be, to use Clinton Rossiter's characterization in The American Presidency (1956), chief administrator. From a Hamiltonian perspective—one that later turned up in the presidential supremacy school of thought in public administration, reflected in the Report of the President's Committee on Administrative Management in 1937—the President is constitutionally responsible for the administrative branch.

Whatever may have been the intent of the Framers, the Constitution they designed allows and even requires both congressional and judicial intrusion into executive branch affairs. Two factors help to explain the constitutional ambiguities surrounding executive branch accountability. First, the system of separation of powers and checks and balances purposely gives Congress both the motivation and the authority to share with the President control over the executive branch. Congress jealously guards its position and powers, and its constitutional incentive to check the President encourages legislators to design an executive branch that will, in many respects, be independent of the White House. Other political incentives support those of the Constitution in encouraging Congress to hold the reins of the bureaucracy. Political pluralism has fragmented congressional politics into policy arenas controlled by committees. They form political "iron triangles" with agencies and special interests for their mutual benefit. The resulting executive branch pluralism is a major barrier to presidential control.

Agency performance of quasi-legislative and quasijudicial functions is the second factor complicating the Hamiltonian prescription for the President to be chief administrator. From the standpoint of constitutional theory, Congress and the courts are the primary legislative and judicial branches, respectively. Each has a responsibility to oversee administrative activities that fall within their spheres. Congressional, not presidential, intent should guide agency rule-making. Moreover, the constitutional system, as it was soon to be interpreted by the Supreme Court, gave to the judiciary sweeping authority to exercise judicial review over Congress and, by implication, over the President and the bureaucracy as well. Chief Justice john marshall stated in marbury v. madison (1803): "It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule." In concrete cases and controversies, where administrative action is appropriately challenged by injured parties, courts interpret and apply both statutory and constitutional law.

The hybrid character of the bureaucracy confuses the picture of its place in the governmental scheme. Constitutional prescriptions apply to the bureaucracy as they do to other branches. The bureaucracy must conform to the norms of separation of powers and checks and balances, procedural due process, and democratic participation. The formal provisions of the Constitution and the broader politics of the system have shaped the administrative branch in various ways, limiting and controlling its powers.

Ironically, although the President alone is to be chief executive, Congress actually has more constitutional authority over the bureaucracy than does the White House as the result of its extensive enumerated powers under Article I. These do not mention the executive branch explicitly but by application of the doctrine of implied powers give the legislature the authority to create administrative departments and agencies and determine their course of action. Under the taxing and spending power, the commerce power, and the war powers, Congress has authorized the creation of a vast array of agencies to carry out its responsibilities. The Legislative Reorganization Act of 1946 mandated Congress to establish oversight committees to supervise the bureaucracy and see to it that agencies were carrying out legislative intent. More important than legislative oversight, a responsibility most committee chairmen eschew because of its limited vote-getting value, is the appropriations and authorization process carried out by dozens of separate committees on Capitol Hill. Committee chairmen and their staffs indirectly sway administrative policymaking through committee hearings and informal contact with administrators who know that Congress strongly influences agency budgets.

The President's executive powers under Article II mean little unless Congress acquiesces in their exercise and buttresses the President's position in relation to the bureaucracy. It is congressional delegation of power to the President as much as, if not more than, the Constitution that determines to what extent he will be chief administrator. But the bureaucracy is always a pawn in the executive-legislative power struggle. Congressional willingness to strengthen presidential authority over the executive branch depends upon political forces that dictate the balance of power between Capitol Hill and the White House. Presidents have valiantly struggled but only intermittently succeeded in obtaining from Congress the powers they have requested to give them dominance over the bureaucracy.

From the new deal of franklin d. roosevelt through the Great Society of lyndon b. johnson, Congress often agreed to requests for increased powers over the bureaucracy. During Roosevelt's administration, Congress for the first time gave the President authority to reorganize the executive Branch, subject to legislative veto by a majority vote of either the House or the Senate. Roosevelt issued a historic executive order in 1939 creating the presidential bureaucracy—the Executive Office of the President—to help him carry out his executive responsibilities. Laws granting the President reorganization authority were periodically renewed and acted upon until 1973 when Congress, in reaction to the watergate revelations and concern over the "imperial presidency," allowed the reorganization act to expire. Although Congress renewed the reorganization law during the subsequent administration of President gerald ford, presidential authority over the bureaucracy had been impaired by the congressional budget and impoundment control act of 1974 and other laws. Under the Congressional Budget Act the President could no longer permanently impound funds appropriated by Congress, as President richard m. nixon had done on over forty separate occasions. The law prevented the President from interfering with administrative implementation of legislative programs.

The courts, too, have claimed administrative turf, by exercising judicial review. Most of the statutes of individual agencies as well as the Administrative Procedure Act of 1946 set forth broad standards of procedural due process that administrators must follow when their decisions directly affect private rights, interests, and obligations. The courts not only interpret these statutory requirements but also apply to the administrative realm constitutional criteria for procedural fairness. For example, the Supreme Court held, in Wong Yang Sung v. McGrath (1950), that the Fifth Amendment's due process clause requires the Immigration Service to hold a full hearing with an independent judge presiding, before ordering the deportation of an illegal alien whose life and liberty might be threatened if he were forced to return to his native land.

Involvement of the three original branches of government in the operations of the bureaucracy does not by itself solve the problem administrative agencies pose to the constitutional theory and practice of the separation of powers. Agencies performing regulatory functions combine in the same hands executive, legislative, and judicial powers. The Administrative Procedure Act of 1946 required a certain degree of separation of functions within agencies by creating an independent class of administrative law judges who initially decide formal rule-making and adjudicatory cases, which are those that by statute require trial-type hearings. Administrative judges must make their decisions on the record; ex parte consultations outside of the agency are forbidden entirely and, within the agency, can be made only in rule-making proceedings. Attempts to impose a judicial model on the administrative process, however, have not solved the constitutional dilemma posed by the fusion of powers within the bureaucracy. Commissions, boards, and agency heads have virtually unlimited discretion to overturn, on the basis of policy considerations, the decisions made by administrative law judges. Courts have supported the imposition of a judicial model on lower-level administrative rule-making and adjudicatory decisions, but have recognized the need for the heads of agencies to have discretion in interpreting legislative intent and flexibility in implementing statutory policy.

Another problem that the bureaucracy poses to the constitutional system is that of democratic control and accountability. An unelected, semi-autonomous administrative branch with the authority to make law arguably threatens to undermine the principles of representative government by removing lawmaking powers from Congress. The solution, in this view, is to restore the delegation of powers doctrine expressed by the Supreme Court in schechter poultry corporation v. united states (1935), holding that the primary legislative authority resides in Congress and cannot be delegated to the administrative branch. The Schechter rule was never strictly followed, and executive branch lawmaking increased and was even supported by the courts after that decision. However, judges did require that legislative intent be fairly clearly expressed, and they encouraged Congress to tighten agency procedural requirements to guarantee both fairness and compilation of records sufficient to permit effective judicial review.

Administrative discretion in lawmaking and adjudication remains a reality regardless of the intricate network of presidential, congressional, and judicial controls over the bureaucracy. But administrative agencies are not conspiracies to undermine individual liberties and rights, nor to subvert democratic government, a view that conservatives and liberals alike have of the enormous power of the executive branch. Political demands have led to the creation of executive departments and agencies that continue to be responsive to the interests in their political constituencies, a democratic accountability that is narrow but, nevertheless, an important part of the system of administrative responsibility.

The bureaucracy performs vital governmental functions that the three original branches cannot easily carry out. Essential to any modern government is a relatively large and complex administrative branch capable of implementing the wide array of the programs democratic demands produce. American bureaucracy has added an important new dimension to the constitutional system. Because it is so profoundly shaped by the separation of powers, by the process of checks and balances, and by democratic political forces, it does fit, although imperfectly, into the system of constitutional democracy the Framers desired.

Peter Woll
(1986)