Strengthening Constitutional Self-Government

No Left Turns

The President and the Modern State

Politico notes the rise of the czars under President Obama: People who report directly to the President who will direct various areas of policy. In part, this is an old story. We have had such czars for a while, and the new President is simply adding more.

Ever since civil service laws were created, Presidents have struggled to find a way to get employees that they cannot fire to do their jobs in general, and to do them as the President would like in particular. But the trend was increased in the Progressive era when belief in checks and balances was thrust aside an the rule of experts was embraced.

Many Progressives were fond of the idea that the best governent was that of a benevolent dictator. Beyond that, in the early 20th century the social science PhD was young, and Progressives had faith that modern social scientists would find the right answer to tough questions by dilligent investigation and study. Hence the American constitutional system of checks and balances was seen as an anachronism, a legacy from the 18th century that needed to be jettisoned. Combie the two, and you have a real problem.

Michael Uhlmann did a good job describing the problem in a recent essay in the Claremtont Review of Books. In particular, he quotes Gary Lawson:

This reluctance to vest the president with control has sometimes expressed itself in the form of independent agencies (independent, that is, of the president), which mock the idea of separated powers by vesting legislative, executive, and judicial functions in the same institution. Consider Boston University law professor Gary Lawson’s provocatively compelling description of the Federal Trade Commission, which typifies the workings of the system as a whole:

"The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. This Commission adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court. But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters both of fact and of law."

This pattern has become an accepted feature of the modern administrative state, so much so that, as Lawson notes, it scarcely raises eyebrows. Presidents and Congress long ago accommodated themselves to its political exigencies, as has the Supreme Court, which since the 1930s has never come close to questioning independent agencies’ constitutional propriety.

The rise of the czars is at once a reaction to this problem and something that, in the past, has only made the problem worse in the long term. The bitterness of modern American political argument is, I suspect, partly a result of the number of political issues that the modern administrative state has removed from the political system. The Courts have done the same thing. (In 1973, for example, they took from the people the right to legislate about abortion). The result is ironic: there is more shouting precisely because there is less actually to legislate about.

Discussions - 11 Comments

Many Progressives were fond of the idea that the best government was that of a benevolent dictator? Pretty laughable on a web site lauding and cheering the excesses of the unitary executive at every turn for the last 8 years under trumped up 'war' conditions. But nice try.

Richard – Czars and special envoys are different. I believe the article you refer to may be confusing them. A special envoy takes care of a problem of foreign affairs. A czar tries to get the agencies of the executive branch to work together. I believe that your post is incorrect in two respects. The Czar phenomenon is not an issue of checks and balances. It is a response to executive branch problems. Progressivism has little to do with it. Czars are a response to problems inherent in the structure of the executive branch, which consists of powerful ministries that have no incentives to cooperate with each other and have strong incentives to pursue their interests rather than what the president wants them to do. (Cabinet secretaries have interests opposed to the President.) Czars are one way that Presidents have tried to deal with these problems. Also, centralizing control in the White House is nothing new. Historically, Presidents have alternated between decentralizing and centralizing, often in the same administration. Neither approach is wholly satisfactory; hence, the alteration. Finally, as a former bureucrat, I must ask, what is the evidence that bureaucrats do not do their jobs?

David, you are correct, am very busy with class prep just now, so I am once again writing quickly.

The idea that the executive has a great deal of prerogative power in foreign affairs (and much less in domestic policy) goes back to Hamilton's side of his fight with Madison. Hence it is true that special envoys, or their equivalent are nothing new. Simiarly, Presidents have had trouble getting their Cabinets to do what they want since at least the first President Adams.

And yet there is a difference between then and now nonetheless. The problem of controlling the cabinet grew more acute even as kinds of troubles Presidents tended to have controlling their cabinets and cabinet departments changed with the rise of civil service and the modern administrative state. The end of the non-delegation doctrine really hit hard, as Uhlmann's example shows. Nowadays, the concern is not simply that the Cabinet secretary will be running a fiefdom by himself, but it is also that the fiefdom will not respond to direction by either the Secretary or the President. Nowadays, in other words, the bureaucracy often has a mind of its own. It is much more independent than it used to be. And yet, there is an effort to hedge this prerogative power. The result is often a chaos of innefficient rules and procedures.

As for Czars, the intellectual history of this one is fairly clear: the idea grew from the Progressive hope for efficient administration by experts, rather than the inefficiency of the old common law rules that used to prevail in the US. Moreover, as civil service grew, the idea of the czar also grew to be applied to the idea that the expert (perhaps the great charasmatic leader) could cut through the red tape and simply get things done. It is interesting that the idea is now applied to foreign envoys. (Ultimetly, the ideal of the czar, like that of the expert, is connected to the myth that there is such a thing as non-political decision-making by government.

By "doing their job," I meant mostly in the sense of getting the agencies as a whole to do what they are supposed to do. The people who work for government generally work fairly hard at their own job. That does not mean that the overall agency is running efficiently--Parkinson is good on this problem. The failure to respond well to Katrina is a good example, as is the decision by a Defense Dept.(?) lawyer not to shoot some very high up people in Al Queda at the start of the Afghanistan war because they were unsure of the legal situation.

In my experiece working for governments, however, there are also a certain number of people trying to do as little work as possible, in as easy a manner as possible, for as much money as possible. (That is true in the private sector too, but it is easier to fire such people there--to the degree we still have at-will hiring and firing). Consier .Megan McArdle's recent troubles with the state of Pennsylvania. Often the rules are designed or interpreted in such a manner as to make life easiest for the person working for the government, not for the lay citizen.

Many Progressives were fond of the idea that the best government was that of a benevolent dictator?

Yes. In fact they still are.

Richard – We agree that the size of the government is an issue. But Czars are not a matter of intellectual history, fortunately. Even if the progressives had not existed, Presidents would still turn to Czars. This is good because structural/organizational problems are easier to fix than intellectual history problems.

“The failure to respond well to Katrina,” as far as the federal government is concerned, was a problem of Federalism, another good thing (federalism, i.e.). Governors and mayors did not want the federal government to take the lead. The ineptitude of Louisiana government is not a problem of progressivism. The DoD lawyers were doing their job well. They and their bosses had just not adapted to wartime thinking. They all got over that pretty quickly. In both these cases, the system was working. Failures and idiocies do not mean the system or individuals in it are not working. Mostly, we get what we want and then decide post facto that we don’t like it. That’s what the governor of LA and the mayor of NO did. We all want the rules applied to everyone in the same way. Generally that’s fair but sometimes it makes a mess.

I'm not sure that removal of legislative ability to enact a simple ban on abortion (as opposed to all sorts of other restrictions on abortion, which, contra Richard's implication, have figured prominently in state legislative agendas since 1973) increases the rancor of political debate. Why would debate be less rancorous if legislatures could ban abortion, as opposed to limiting it through other means? If anything, folks who oppose a ban would just get more rancorous. And in what respect has abortion been "removed from the political system"? Some politicos seem to talk about nothing but abortion.

Similarly, what's the baseline from which one should measure partisan rancor? The 1960s? The 1850s? At any rate, the usual explanations about political polarization are probably good enough to do the job, such as redistricting and the creation of mostly "safe" seats, which helps to discourage moderate candidates.

Administrative agencies themselves generate legislative controversies that require attention, so I'm not sure that it's even true that the creation of the administrative state took very much off the table of Congress. If anything, the design and maintenance of bureaucratic agencies and their organic legislation (and the legislation they implement) is a full-time legislative enterprise. Have you ever read the Clean Air Act?

Finally, it's worth describing in more detail the relationship between agencies, courts and Congress. Sure, the FTC develops an approach to monopoly power and restraint of trade, for example. But the meaning of the relevant terms is also heavily judicialized, and is the subject of periodic bouts of legislative activity. The EPA doesn't want to regulate CO2 under the Clean Air Act, the courts get involved and now Congress will as well. The interaction between all of these players makes the field complex, but it hardly means that Congress has little to do.

David, Did Presidents turn to czars before the modern administrative state was created? I don't recall any. The same people who created the one create the other. Perhaps I should say that the same swarm of ideas that produced the one also produced the other.

The relationship between the executive, courts, and congress was fundamentally different before we created administrative agencies that contain elements of all three branches. The checks and balances that exist are weak, and come in, if at all, late in the process.

Richard -- Small governments without much to do don't need Czars. Big governments with lots to do need Czars. In order for your arument (Progessivism and only progressivism leads to Czars) to be correct, Progressivism would have to be the only cause of big government. Do you think that is true? What you are claiming is causation is, I believe, a mere correlation. Also, by your argument anyone who uses Czars is a progressive, which would include Reagan and Bush II.

In England, France, or Germany do they create czars? What about Japan? Not that I know of. Do they create the functional equivalent of them? Again, I don't think so. However it happened, David is entirely correct that Reagan and Bush II both had czars. As I noted in the post, it is not a new thing. But that just shows how little deep and lasting impact they really had. Next to FDR, Reagan changed very little.

Good question about GB, France, etc. I don't know the answer. But if they don't have Czars, are you also claiming that they did not have Progressivism or its equivlanet and the administrative state? This doesn't see right. So we have places that are progressive (US, UK, France, etc) some of which have Czars and some of which do not. Doesn't seem to support the claim that Progressivism leads to Czars.

Its wonderful that will be more caesers to praise. I hope they do away with waste of time local governments and simply appoint a caeser for every town. I wonder if an increase in caesers will provoke a reaction resulting in there being more of me?

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