V. What’s Wrong with an “Independent” and Unaccountable Regulatory State?

The Problem

What’s the problem?

Early progressives (during the late nineteenth and early twentieth centuries) were openly hostile to the Constitution’s separation of powers because they understood that a separation of powers that protects individual liberty prevented the centralization of government power in regulatory agencies that they thought could more efficiently manage society based on expert knowledge. Modern progressives share many of these same biases against separation of powers and rule by the people in favor of rule by elites. The problem is that modern progressives have realized their intellectual ancestors’ vision and have largely undermined the important democratic controls that ensured our government is based on the consent of the governed.

For many decades, the progressives were frustrated in their attempts to subvert the U.S. Constitution to allow the concentration of power in elites that were insulated from political control. But starting in the mid-1930s, Congress started enacting regulatory structures that violated constitutional principles to: (1) make certain regulatory actors were insulated from political or democratic control, i.e., “independent,” and (2) remove other constitutional checks on presidential control of other government actions that regulate the public.

“Independence”

What’s wrong with agency “independence?”

“Independence” can mean many things, such as the financial independence not to work for or answer to others. That’s a desirable goal for individuals seeking freedom for themselves, but for federal government agencies, “independence” means a lack of accountability to the American people and their elected representatives. Within the regulatory state, there are various ways the concept of “independence” comes up. They present similar problems.

Congress has increasingly created “independent agencies,” so named because a statute limits presidential direction or control of the agency’s operation and sometimes even the selection of its officers. Congress increases agency independence and reduces democratic input by providing agency officials with protection from removal (i.e., firing) by anyone except for limited reasons, allowing the agency to set its own budget and staffing levels and limiting the ability of the president to coordinate or review its regulatory activity.

It’s bad enough when Congress grants any executive department or agency expansive and ill-defined rulemaking and enforcement discretion to regulate and coerce citizens without Congress making important policy decisions. Attempting to limit presidential control over such discretion, however, exacerbates that problem and makes “independent agencies” answerable to no one. That’s often unconstitutional, since the Constitution does not give Congress power to create new branches of government or micromanage the way the President runs the executive branch.

“Politics”

Should “politics” influence agency policy?

Congress also sometimes seeks to insulate agencies or parts of executive departments from purported “political” influences, but that is just another word for “democratic” influence and control. Career staff in agencies perform many vital tasks, including scientific research and investigations. There are strong norms against partisan manipulation of basic research, especially for routine and continuing functions like calculation of unemployment or inflation rates. Yet when new policy problems arise, what questions to study or the rigor or transparency of the process are just two of the many matters that require supervision and executive review. More importantly, even undisputed facts and findings, which rarely exist, do not automatically generate an obvious policy response.

The argument for “independence” often mirrors an old justification for the growth of the regulatory state that has been discredited in scholarly circles but is still invoked by regulators themselves and their activist defenders. The argument is that regulators are experts and that they can regulate our lives in a “neutral” manner. There is no way to take politics out of policymaking, including reliance on actual or self-styled experts for part of or the entire policymaking process. To begin with, the operation of scientific discovery is distorted within government agencies, and uncritical reliance on government experts poses special risks.

A majority of renowned experts (free of government influence) have been spectacularly wrong about some subjects, such as the decades-long rejection by the American medical establishment of Joseph Lister’s research in germ theory and how to prevent bacterial infections from spreading. The scientific truth is even slower to emerge when government agencies have a subconscious or conscious reason to fund or rally-around conclusions that augment the agency’s importance or growth.

And even when regulators can determine something with reasonable certainty, there are many other factors that influence policy responses, none of which are automatic or neutral in the manner regulators or other experts make them seem. Other factors include the knowledge or uncertainty of other related facts and priorities, what the range of regulatory alternatives are and how well each may work in real-world settings, the estimated benefits and costs of each alternative, including market-based or tort responses, the tradeoffs with other values, the importance of distributional effects of regulation, and one huge variable that regulators rarely admit, the possibility of unintended consequences.

Regulators also are not neutral in their analysis and decisions, even if they possess expertise in all fields of knowledge, because they have a strong, natural incentive to enlarge their own powers, prestige, budget, staffing, and influence. Even if that bias could be eliminated, and it simply can’t, the bottom line is that regulations that have the force of law must be imposed by democratically accountable officials so that our government operates by the consent of the governed. That generally requires principal agency officers (such as department heads and assistant secretaries) who have been appointed by the President and confirmed by the Senate to make all significant government decisions.

Congress

What if Congress can’t or won’t act?

One final justification for the regulatory state is blatantly antidemocratic, i.e., that legislatures can’t be trusted to get things right or that partisan gridlock prevents Congress and other legislators from doing the “right” thing. As a result, the argument is that only independent government experts who are politically free can establish the “right” level of regulation, and their independence supposedly allows them to make the “right” policy choices.

Even if Congress or state legislatures could be relieved of their job of legislating, the Constitution’s framers thought too much ill-considered law was a greater risk than too little. The possibility of gridlock is a feature, rather than a bug, in our constitutional system, and it enables the legislature to resist special interests (or “factions”) to promote compromise that is more likely to result in legislation that is broadly supported and promotes the public good.

In contrast, specialized agency missions, especially if augmented by independence from political control, cause tunnel vision. Even administrative state superfan Justice Stephen Breyer recognized this, writing that agency decisions can reflect “an agency’s supreme confidence in the importance of its own mission to the point where it leaves common sense aside.”

Trying to “depoliticize” policy also just shifts responsibility; if instead of passing laws, Members of Congress pass the buck to unaccountable agency bureaucrats, they can claim credit for “doing something” without taking responsibility for the ultimate policy decisions. Democracy may be messy and hard work, but there is no better way to debate and decide issues of the highest importance.

Promoting Accountability

How does the Constitution promote democratic government and political accountability?

The Constitution’s framers understood that the president couldn’t run the executive branch alone and would need a staff to manage it. But they carefully crafted several constitutional provisions to ensure separation of powers and accountability to the people. For example, Article II, Section 1 of the Constitution explains that all executive power is vested in the president alone. To reinforce that constitutional grant of authority, all officers of the United States must be appointed in a way that guarantees their accountability to the president and, ultimately, to the people. Pursuant to the Appointments Clause, all agency heads and other principal officers must be appointed by the president and confirmed by the Senate. All inferior officers must be appointed in the same manner unless Congress, by law, vests the appointment in the president alone, courts, or department heads.

Moreover, the Supreme Court held that only officers appointed in this manner can exercise significant authority under the laws of the United States. In 1976, the Supreme Court held in a landmark case, Buckley v. Valeo, that rulemaking is a task that only officers of the United States can perform, but it didn’t decide what level of officer may issue rules. Subsequent cases strongly support the conclusion that only principal officers appointed by the president and confirmed by the Senate may issue final rules binding on the public.

And yet, agencies routinely violate this constitutional principle by delegating rulemaking authority to career bureaucrats. Pacific Legal Foundation tracked 17 years of Health and Human Services regulations to find that 77 percent were unconstitutionally issued without principal agency officer approval.

Unelected, unaccountable individuals can’t lawfully be given independence to “make” law free from supervision or political accountability. Instead of taking politics out of policymaking, it takes the American people out of policymaking by insulating agency officials from accountability. Lord Acton famously noted, “Power tends to corrupt, and absolute power corrupts absolutely.” Agency officials and staff who are largely free from supervision and political accountability obtain unacceptable, concentrated power.

Given that danger, the framers were very careful to make lawmaking anything but efficient, easy, or apolitical, and the same should be true for issuing regulations that bind the public.

The Solutions

What are the solutions?

Ensure agency decisions—particularly those that bind the public—are made by politically accountable officials instead of lower-level agency employees.

Remove tenure protections for officials who exercise executive power so they are accountable either to the agency head or directly to the President.

Return legislative authority back to Congress. Too often Congress passes broad laws with delegations of authority to agency officials. Rather than open up chasms that invite increasing agency lawmaking, Congress should limit the gaps for agency officials to fill in.

PLF is a national nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. We sue the government in court when our clients’ rights protected by the Constitution are violated, and advocate for legislative and regulatory reforms in the other branches of government. Started in 1973 in California, PLF now seeks reform across the country, including suits filed nationwide, scoring precedent-setting victories for our clients, with an unmatched track record at the United States Supreme Court.