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. A good example is Congress creating the Consumer Financial Protection Agancy, but doing so with no rules, leaving it to the new agency itself to create the rules which it would then enforce. The idea that, for instance, that maximum credit card rate that banks will be allowed to charge will be set by unelected bureaucrats is appalling.

  2. Rafflaw: if we do not get money out of politics this climate will be the norm forever.

    Money in politics is 90% of our problem, I agree, but what Turley is describing here does not seem to be a problem of corruption to me. I liken this more to a business situation in which a manager with hiring discretion hires an “assistant manager” that does all of his work, so he can be free to do nothing at all. I call that “over delegation,” and it is not some aberration of human psychology, I have seen it happen in small businesses and large. For both, this happens near the top where owners or officers have little accountability to anybody higher up; which applies to Congress too.

    To me that is what the Congress has done, and they agreed to the agency autonomy out of laziness and for political advantage.

    It is lazy because by granting power and autonomy they do not have to oversee that agency’s work. That is politically advantageous because autonomy means they can evade blame for whatever their agency did: The failings of an autonomous agency can be blamed on many, past and present, to a point of diffusion in which we aren’t sure who is to blame. That is a good political outcome for a politician, for one he can claim his hands were tied, then he can immediately promise to “work to fix it” if reelected.

    I think money in politics is probably the biggest problem facing our nation, threatening our civil liberties and rights, our economy and our democracy, but this particular problem does not seem very driven by money or favors to the wealthy or corporations, or even politics. To me this is more of a general failing of humans at the helm, that have lost all interest in the work but not the substantial rewards of their position.

  3. Barkin banter on “res – stoppel’s

    Even if, arguendo, we were living in a legitimate world (which we don’t);
    your premise goes down the “evergreen” retainer pathway.

    Demurer – for sure – is the way to go (or vexatious, lacking standing)

    Again – that is – in a legitimate world!

  4. The Doctrines of Res Judicata and Collateral Estoppel

    These two doctrines establish the rule that once a case has reached a final judgment, relitigation of the claims and issues generally is barred.

    Res Judicata (Claim Preclusion)

    Rule: If judgment is rendered in favor of a plaintiff in a particular suit, the plaintiff is precluded from raising claims (in any future litigation) which were raised in (or could have been raised) in that lawsuit.

    Elements: Before a court will apply the doctrine of res judicata to a claim, three elements must be satisfied:

    There must have been prior litigation in which identical claims were raised (or could have been raised). In general, claims are sufficiently identical if they are found to share a “common nucleus of operative fact.”

    The parties in the second litigation must be identical in some manner to the parties in the original litigation, or be in privity with the parties in the first action.

    Note: A party is considered to be in privity with a party in the original litigation if:

    The nonparty succeeded to the interest of a party;

    The nonparty, though it did not technically participate in the first suit, controlled one party’s litigation in that suit;

    The nonparty shares a property interest with the party;

    The party and the nonparty have an agency relationship (agent/principal); or

    The party otherwise adequately represented the interest of the nonparty in the previous litigation.

    There must have been a final judgment on the merits in the original litigation. Note: Not all final judgments are based on the merits of the case (i.e., cases dismissed on jurisdictional grounds, etc.).

    Scope: Res judicata bars relitigation of claims that were previously litigated as well as claims that could have been litigated in the first lawsuit.

    Counterclaims:Res judicata is generally not applied to potential counterclaims by defendants, so defendants are not necessarily barred from raising a counterclaim in future litigation. However, remember that all counterclaims must conform to FRCP Rule 13(a), and that some counterclaims are compulsory (must be raised in original litigation or they are waived).

    Collateral Estoppel (Issue Preclusion)

    Rule: If an issue has been decided in a particular case, it is treated as decided—without further proof—in any subsequent litigation that involves the issue. In other words, a person or party who seeks to relitigate any already decided issue is collaterally stopped from doing so.

    Elements: Before a court will apply the doctrine of collateral estoppel, three elements must be satisfied:

    There must have been a prior litigation in which the identical issue was brought before the court.

    The issue must have been actually litigated in the first judicial proceeding, and the party against whom collateral estoppel is being asserted must have had a full and fair opportunity to litigate the issue in the first judicial proceeding.

    The issue must necessarily have been decided and rendered as a necessary part of the court’s final judgment.

    Scope: Unlike res judicata, collateral estoppel does not bar future litigation over issues not actually raised in the original judicial proceeding, even if the issues could have been raised.

    Who may be bound: The old rule that only the actual parties (and those in privity with the actual parties) to the first judicial proceeding may be bound by the court’s findings/decision on the issue has been virtually abolished. Increasingly, courts have been willing to allow strangers (persons not involved in the first litigation) to use collateral estoppel in various situations to prevent another party from relitigating an issue.

    1. Governor Siegelman put in prison by corrupt judge – via – Karl Rov’r

      Richard Fine spent 18 months in prison – without a charge

      When he (an attorney) asked a question about California Supreme Court Judges getting an extra $50,000 per year in salary through a bogus program. Governor Schwartznegger pardoned all the judges, Fine got out of prison and the judge who put him there resigned.

      They, like James Traficant and Rick Convertino – are True Patriots

      Many cases such as theirs deserves “our” time/efforts.

  5. We have far too many problems to chime in about an issue that is likely to resolve itself positively for Brennan. If you want to get involved;

    Seek to free Siegelman

    Help Richard Fine.

    Demand the Banks not benefit from Robo signing (arrest somebody PLEASE)

    So much cheap seat barking/dogging – and JT’ing;
    instead of getting in the muck – to clean things up.

    Where’s the Great JT (Traficant) – when you need him?

    Now that’s a guy who could articulate things on a grand scale – wonderfully!

  6. Congress needs to act within sixty days on a presidential appointment to a federal agency. Perhaps ninety on a judicial appointment because it is for life. The President needs to fill all the appointments in the next recess to push this along. There was some judge whose name was up in Congress for 400 days. If Congress wont vote someone up or down but does the Tom Delay thing then the President should appoint that person on the following Sunday while the Congress is in recess. JT’s argument on the subject the other day was exactly wrong. Advise and Consent is not Advise and Consider Forever.

    1. Making a case to push for another “Color of Law” justice to be confirmed as a “solution” is absolutely mind boggling.

  7. A subject in the topic needs to be explored more fully. Brennan was prosecuted in a federal court for some strip thing he did in an airport. The case was dismissed or he won in that federal court. Then, the TSA brought some administrative agency case against him. It seems to me that the TSA should be barred from any adminstrative claim on the same subject matter. It should be a matter of res judicata. It could also be judicial estoppel. Or estoppel by judgment. If it is the same parties it is estoppel by judgment.
    Will the class please chimne in.

  8. 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.
    ———————————————-
    They’re all liars and cowards. They’re sycophants. That applies to the third branch as well.
    ++++++++++++++++++++
    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.
    ——————————————–
    This is a Republic, not a Democracy. Somebody once said it’s a good thing if you can keep it.
    =====================
    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.
    ———————————————————————————————
    The Fourth Reich?

    http://www.guardian.co.uk/world/2004/sep/25/usa.secondworldwar
    ++++++++++++++++++++++++++++++++++++++++++++++++++++++
    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.

    http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-6026.htm
    =========================
    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.

    http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-6026.htm
    ===================
    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.
    —————————————

    Very well said.

  9. Anything divided against itself cannot stand. Change to something better will look like failure to those that want false [power.

  10. Dear friends,

    In case you haven’t been paying attention to the simple math.

    Confiscation of your checking/savings/pensions is coming to North America without any doubt.

    **This will be remembered as the “Great Leveling” after the period of the “Great Flushing (Lehman Brothers)

    Not only can it happen here, but it will happen here. It stands on legal grounds by legal precedent both in the US, Canada and the UK.

    The FDIC, who contributed to the 2012 Bail-In Thesis white paper, makes no mention of insured account levels. The game of having multiple banks expecting to have multiple FDIC insurances, in my opinion, will fail ** JS

    **
    It Can Happen Here: The Confiscation Scheme Planned for US and UK Depositors
    Posted on March 28, 2013 by Ellen Brown

    Confiscating the customer deposits in Cyprus banks, it seems, was not a one-off, desperate idea of a few Eurozone “troika” officials scrambling to salvage their balance sheets. A joint paper by the US Federal Deposit Insurance Corporation and the Bank of England dated December 10, 2012, shows that these plans have been long in the making; that they originated with the G20 Financial Stability Board in Basel, Switzerland (discussed earlier here); and that the result will be to deliver clear title to the banks of depositor funds. **

    http://webofdebt.wordpress.com/2013/03/28/it-can-happen-here-the-confiscation-scheme-planned-for-us-and-uk-depositors/

    Also ck the latest US bankruptcy code of 2005 or 2006.

    Ck under the section regarding Banks/Insurance co’s.

    That’s another place where they claim they have the right to steal all of your assets.

    Understand now why Wallst is demanding you give up your 2nd amendment “Right”.

    Ya, they know you’re going to be pissed when the steal your assets right in front of your face under the color of law.

  11. As for the “4th Branch” – the Professor has been quite coy in not giving it a name. Thus the issue needs clarification. Just in case no one has noticed the reality. Like the FBI now standing for Federal Bureaucrat Instillers, or the Department of [In]Justice, the U.S. [cant] Trust a US Trustee, Federal Judges who apply only “Color of Law”, the SEC (Selective Enforcement Commission) and so on – and so on.

    All of which exists to make sure that the CIA powers that be get away with everything they wish to (remember where Bush Sr. came from)

    And – the head of the 4th Government Agency

    Goldman Sachs – doing whatever the hell they please.

  12. davidm2575 1, May 26, 2013 at 11:41 am

    It appears that the military has done the best job of doing more with less people.
    =======================================
    You are leaving out contractors.

    The military budget doubled from 2000 to recently.

    The only department to do so.

  13. In the 70’s/80’s a Federal Court (FC) declared Oklahoma’s prison system unfit & order the state to fix it.

    The state legislature was unable to agree so the FC took over reforming the prison system.

    Maybe it’s better today in some regards, but we still have 1/2-2/3rds of the Non Wallst Banker/Insur people in prison who shouldn’t be inside because of the cost associated with keeping that many under control by paid guards, but I digress.

    (Note: Need to make more rm in prisons for Wallst Banks/Insur/Polecats. LOL;) )

    Anyway, I’m not sure why we haven’t seen any sharp lawyers stand up against these illegal unconstitutional Administrative Courts, (AC) maybe we’re fresh out of good ones?

    In recent years we’ve seen small farms/etc… being raided by violent swat teams for such things as having a club to share the cost of Raw unpasteurized Milk & the cases brought before AC.

    I don’t seen why those farmer’s lawyers didn’t file a counter suit in a real court, sue for relief/damages, but also to have the AC declared a Public Menace & have the Farmer/local citizens, in paid positions of authority, be put in charge of clean up those AC messes & firing who ever needs fired.

    Under court supervision, put regular citizens that have been harmed back in charge of clean up these rats nest of bureaucracies, corrupt DC, police, city halls, etc….

    I would also think Lawyers would like this expanded Ombudsman type solution as the lawyers could be paid as expert advisors to the Ombudsman committees.

    Regardless of what govt, courts, lawyers do, many of us know by just the simple math of this ongoing govt financial collapse this current system is on the edge a rapid massive change.

  14. OS,
    my first post is lost in neverland, but if we do not get money out of politics this climate will be the norm forever. I would imagine that the House will be voting soon to give ALEC its own agency status.

  15. Problem is, the military may be getting smaller, but that does not stop Congress from buying hardware not even the Pentagon wants or needs. The average congresscritter wants money to flow into his or her district, and most of the major defense contractors make sure there are subcontractors in every critical district.

    Hey people. Bridges are falling into rivers. Spend some money fixing them. Of course, bridges don’t cruise supersonic in stealth mode, so they aren’t sexy. If there really is such a thing as Karma, a busload of congresscritters will be driving over the next bridge that collapses when it lets go.

  16. What Mespo said. The agencies do need some autonomy to make sure that politics do not control them, but the real culprit is money in politics. The Citizens United decision is the root cause of the IRS problem because of the large number of 501c4 organizations that have been filed to take advantage of the tax deduction and to keep their donors secret. I wonder if ALEC is their own agency now??

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