The Rise of the Fourth Branch of Government

3branchesBelow is today’s column in the Washington Post’s Outlook Section on the dangers of America’s growing administrative state. Ask any elementary student and you will hear how the Framers carefully designed a tripartite, or three-branch, system to govern the United States. This separation of powers was meant to protect citizens from tyranny by making every branch dependent on each other to carry out the functions of government. These three branches held together through a type of outward pressure – each holding the other in place through their countervailing forces. Add a fourth branch and the structure begins to collapse. That is precisely what is happening as federal agencies grow beyond the traditional controls and oversight of the legislative and executive branches. The question is how a tripartite system can function as a quadripartite system. The answer, as demonstrated by the last two decades, is not well. The shift from a tripartite to a quadripartite system is not the result of simply the growth in the size of the government. Rather, it is a concern with the degree of independence and autonomy in the fourth branch that led me to write this column.

There were times this past week when it seemed like the 19th-century Know-Nothing Party had returned to Washington. President Obama insisted he knew nothing about major decisions in the State Department, or the Justice Department, or the Internal Revenue Service. The heads of those agencies, in turn, insisted they knew nothing about major decisions by their subordinates. It was as if the government functioned by some hidden hand.

Clearly, there was a degree of willful blindness in these claims. However, the suggestion that someone, even the president, is in control of today’s government may be an illusion.

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

When James Madison and the other Framers fashioned a new constitutional structure in the wake of the failure of the Articles of Confederation they envisioned a vastly different government. Under the federalism model, states would be the dominant system with most of the revenue and responsibilities of governance. The federal government was virtually microsoptic by today’s standards. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.  [These numbers can be themselves misleading since much federal work is now done by contractors as part of “downsizing” but the work of the agencies has continued to expand.  Moreover, technological advances have increased the reach of this workforce].

This  growth since the founding has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

The judiciary, too, has seen its authority diminished by the rise of the fourth branch. Under Article III of the Constitution, citizens facing charges and fines are entitled to due process in our court system. As the number of federal regulations increased, however, Congress decided to relieve the judiciary of most regulatory cases and create administrative courts tied to individual agencies. The result is that a citizen is 10 times more likely to be tried by an agency than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000.

These agency proceedings are often mockeries of due process, with one-sided presumptions and procedural rules favoring the agency. And agencies increasingly seem to chafe at being denied their judicial authority. Just ask John E. Brennan. Brennan, a 50-year-old technology consultant, was charged with disorderly conduct and indecent exposure when he stripped at Portland International Airport last year in protest of invasive security measures by the Transportation Security Administration. He was cleared by a trial judge, who ruled that his stripping was a form of free speech. The TSA was undeterred. After the ruling, it pulled Brennan into its own agency courts under administrative charges.

The rise of the fourth branch has occurred alongside an unprecedented increase in presidential powers — from the power to determine when to go to war to the power to decide when it’s reasonable to vaporize a U.S. citizen in a drone strike. In this new order, information is jealously guarded and transparency has declined sharply. That trend, in turn, has given the fourth branch even greater insularity and independence. When Congress tries to respond to cases of agency abuse, it often finds officials walled off by claims of expanding executive privilege.

Of course, federal agencies officially report to the White House under the umbrella of the executive branch. But in practice, the agencies have evolved into largely independent entities over which the president has very limited control. Only 1 percent of federal positions are filled by political appointees, as opposed to career officials, and on average appointees serve only two years. At an individual level, career officials are insulated from political pressure by civil service rules. There are also entire agencies — including the Securities and Exchange Commission, the Federal Trade Commission and the Federal Communications Commission — that are protected from White House interference.

Some agencies have gone so far as to refuse to comply with presidential orders. For example, in 1992 President George H.W. Bush ordered the U.S. Postal Service to withdraw a lawsuit against the Postal Rate Commission, and he threatened to sack members of the Postal Service’s Board of Governors who denied him. The courts ruled in favor of the independence of the agency.

It’s a small percentage of agency matters that rise to the level of presidential notice. The rest remain the sole concern of agency discretion.

As the power of the fourth branch has grown, conflicts between the other branches have become more acute. There is no better example than the fights over presidential appointments.

Wielding its power to confirm, block or deny nominees is one of the few remaining ways Congress can influence agency policy and get a window into agency activity. Nominations now commonly trigger congressional demands for explanations of agencies’ decisions and disclosures of their documents. And that commonly leads to standoffs with the White House.
Take the fight over Richard Cordray, nominated to serve as the first director of the Consumer Financial Protection Bureau. Cordray is highly qualified, but Republican senators oppose the independence of the new bureau and have questions about its jurisdiction and funding. After those senators repeatedly blocked the nomination, Obama used a congressional break in January to make a recess appointment. Since then, two federal appeals courts have ruled that Obama’s recess appointments violated the Constitution and usurped congressional authority. While the fight continues in the Senate, the Obama administration has appealed to the Supreme Court.

It would be a mistake to dismiss such conflicts as products of our dysfunctional, partisan times. Today’s political divisions are mild compared with those in the early republic, as when President Thomas Jefferson described his predecessor’s tenure as “the reign of the witches.” Rather, today’s confrontations reflect the serious imbalance in the system.

The marginalization Congress feels is magnified for citizens, who are routinely pulled into the vortex of an administrative state that allows little challenge or appeal. The IRS scandal is the rare case in which internal agency priorities are forced into the public eye. Most of the time, such internal policies are hidden from public view and congressional oversight. While public participation in the promulgation of new regulations is allowed, and often required, the process is generally perfunctory and dismissive.

In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding.

We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.

Washington Post (Sunday) May 26, 2013

[The statistics on the rule-making and agency case figures in the piece came from Anne Joseph O’Connell, Vacant Offices: Delays In Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 923 (2009) ]

55 thoughts on “The Rise of the Fourth Branch of Government”

  1. At the outset let me openly admit that in the topic of Administrative Law I am best described as Zachariah Johnston described himself in the Virginia Ratifying Convention, namely, ” of the Middle Rank”. My studies involve a few selected texts: Administrative Law and regulatory Policy, Regulation and DeRegulation, The Gilbert Series on Constitutional Law, Hart and Sacks Legal Process Theory.. These texts were studied outside of Academia, and accompanied readings of Madison’s Writings , which I have pursued for about 15 years, The Debate on the Constitution, series 1 and 2. I have additionally read as many public policy treatments that I can source.. In this admission the ‘Lettered’ amongst you will find many gaps that I have not filled in my curious quest, so if my conclusions seem sophomoric I must apologize in advance.

    The concern that I have is the excrescent growth of regulatory governance, which if I am correct, is agreed to by the Bench, the Bar, and Academia. With this trend agreed to, there is an implicit acceptance of a ‘4th’ branch necessity that is not lacking historical precedent. Attendant with the acceptance bureaus
    is the recognition that each has quasi governmental powers, executive, legislative, and judicial, and that those so charged are not elected, but rather appointed. My readings there suggest a real depth of expertise exists in many of the bureaus, and or agency members.

    I also must include the meager readings I have done on Executive or orders, I have only cursory readings there, going to the common law background of regulation and it’s origins. I have tried to comprehend the transitions of thought that exist between Madison’s fulfilling a congressional statute’s requirement of implementing a tariff at a given point, to the latest round of executive orders dealing with the PPACA dealing with time frames, and exclusions.. If I am correct this oft called ‘tweaking’.

    I understand the concept of agencies, the expertise they should contain, my best example there is Nuclear Regulatory Commission. I pay due respect to the concept of ‘evolving standards of decency’ when contemplating the advancement of ‘civil rights’ and the changes to certain elements of the Bill of Rights, there, in this last topic I absorbed the following books, ” Constructing Civil Liberties” by Kersch, and ‘Brandies and the Progressive Constitution’.

    Although my limited studies betray my self proclaimed ‘Middle Rank’, and the erudite can dismiss my musings with the well documented abridged field of my study, I must assert that I am a citizen of the United States, and also follow the Madisonian idea that ‘Constitutions are over governments, and people over constitutions’. I have a filiopietistic obdurateness to the ‘Consent of the Governed’.

    This post is as much a question as statement, and of the questions I have, are we a Constitutional Republic, or have we become a Parliamentary system ? Are we to trace our history to Madisonian Thought, or to source ourselves to a Wilsonian Origin ? Having once heard Newt Gingrich call himself a ‘Real Politique (sic) Wilsonian. Is the conclusion of Justice Roberts in NfIB V Sebelius a profound trenchant comment of Constitutional Principles, or is it a logomachy wrapped in an attempted ” switch in time that saved thine ( his legacy ), with neologisms that the much more urbane than I citizens than I, seem to accept.

    Can a ‘4th’ Branch of largely unaccountable govern, under the Constitution and keep the ‘separation of powers’ in tact ?? How far does delegation and sub delegations go before we are not sure who is sovereign, and how to hold them accountable ? Is the ‘revolving door’ the conduit for corporate control of agencies, what of ‘capture’.

    Having posed enough questions to documents my doubts, I am worried as to our Constitutional fate. The executive orders conundrum posed by Professor Turley should be call to liberals and conservatives, as he so ably elaborated upon, is it not right that we should take alarm at experiments not only with our liberties, but also our charter of government ? Can the Executive Branch function like a Prime Mimister, and preserve our heritage…. ?

  2. John Lewis: So how do we go about getting rid of the fourth branch of goverment??

    There are many ways “how,” the problem is they all involve enough people giving a crap, and nobody knows how to make enough people give a crap.

    Seriously, if enough people cared then in two years we could take 100% of the House and 1/3 of the Senate; in another two we could take 2/3 of the Senate and the White House, and be immune to filibuster, and take the leadership of every state, including mayors and governors. If enough people band together they can almost instantly (in historical context) take over this government.

    I think we just don’t care enough to put aside partisan politics long enough to stop the corruption. They have got us cornered, we care so much about Democrat or Republican that it allows both parties to be corrupt, because for each camp, the other party is not an alternative.

    So Party A can be increasingly corrupt while in office, until their constituents get fed up. But the fed up do not switch to Party B, they just fail to turn out to vote. In the meantime, Party B is out of power and their constituents are getting increasingly agitated; and putting up new candidates.

    A tipping point is reached and Party B takes office. The new candidate doesn’t do anything, and more often than not finds the corruption will line their pockets with “investment opportunities,” so they get rich and the corruption continues.

    The fed up Party A voters are horrified. While Party B rules, they find their own new candidates, and become agitated, while Party B voters become increasingly disaffected and apathetic that their newly elected wonder child is no better than their last wonder child.

    A tipping point is reached, enough of Party B stays home, and enough of Party A turns out, that Party A takes office with a new champion…

  3. If you get between a big man and his food;

    UH OH!
    What about the expiration date? Maybe they want to move to Paraguay. Can they speak the language?

  4. The mindset of government is to grow in size, self-protection, and power until there remains only the tyrant and the slaves.

    1. John;

      We (the UN-United States of America) and its citizens, will never band together to stop the tyranny, cronyism and corruption that has become our 4th Branch of Government.

      It (the 4th protocol if you will) exists to keep U.S. feeding “Them”.

      If you get between a big man and his food;

      UH OH!

Comments are closed.