The Growth of the Administrative State And the Decline of Democracy

What recourse do American voters have when they disapprove of a bureaucrat or a member of the President's cabinet?

When voters disapprove of an elected official, they have the ability to vote that official out of office. And, as the 2010 elections proved, Americans continue to exercise that right with enthusiasm. Outraged by the Democrats' heavy-handed policies, American voters delivered a stunning set of defeats for Democrats -- from Washington, DC to state capitals.

The Founding Fathers understood the importance of elections for holding lawmakers accountable. In crafting a system of divided government, they acknowledged that the authority to write laws ought to rest in the hands of elected officials, rather than in the hands of unelected bureaucrats. The Founders' logic is easy to understand: giving rulemaking and lawmaking powers to unelected (and thus, unaccountable) bureaucrats creates a slippery slope that leads to tyranny. (See Federalist #47 for the Founders' explanation of the risk of tyranny.)

The Founding Fathers were clear about their plan for a government consisting of separate and independent branches of government -- the executive, the legislature, and the judiciary -- because they viewed that separation of power as the most fundamental mechanism for the preservation of individual liberty. But over the past century, America has witnessed the creation of a fourth branch of government -- the administrative state. In recent decades, this unaccountable and unelected branch of government has grown both in size and power.

Today the administrative state (the federal bureaucracy) has far-reaching powers and authority. Although government bureaucrats are never elected and are rarely forced to account to the public for the impact of their actions, they nevertheless have amassed all three types of governmental powers -- judicial, legislative, and executive. Federal regulatory agencies today possess the authority to write new laws and rules, to enforce their new laws, and to adjudicate those laws. Wholly outside of all of the Constitution's safeguards for personal liberty, the administrative state today writes cumbersome regulations that interfere with Americans' ability to conduct business, purchase a home, or even open a checking account.

In popular culture, government bureaucrats are often portrayed as lazy, overpaid, do-nothing paper-pushers. And there is certainly some truth in that image. But far more troublesome than the idea of a corps of lazy bureaucrats is the reality that bureaucratic agents today zealously write tens of thousands of pages of rules and regulations that govern nearly every aspect of American life, from internet commerce (in the form of "net neutrality"), to regulating speech (e.g., FCC's attempt to impose the so-called "Fairness Doctrine"), to establishing standards for Americans' home appliances.

The administrative state and the federal bureaucracy first began to grow during the beginning of the 20th Century, as the Progressives sought to accomplish their entire agenda through the federal government. The Progressives realized that their agenda could be more swiftly enacted at the federal level, and the government grew in response to implement these new legal codes and standards. Continuing in the Progressive mold, President Franklin Delano Roosevelt took the administrative state to new heights, as he created a plethora of agencies and offices to oversee an ever-growing number of areas of Americans' lives.

The Obama Administration has furthered the reaches of the federal bureaucracy, and the Democrats' two largest recent agenda items -- the Dodd-Frank financial regulatory overhaul and ObamaCare -- give vast new powers to bureaucratic agents. In writing both of these laws, Congress acquiesced and yielded the authority to federal agencies to use their own discretion and determine how to implement the laws.

Congress benefits from shirking its law-making duties because Members of Congress have the ability to tell their constituents that they have done something, and yet they do not have to take the blame for any of the law's implementation or the resulting negative impact of the law.

ObamaCare provides a good example of the regulatory state and the ways that Congress has yielded ambiguous and arbitrary powers to unelected bureaucrats. Congress wrote the 2,700 pages of legislation, but contained in the new law are close to 2,000 vague references to new powers and decision-making authority that the Secretary of Health and Human Services and her legion of bureaucrats will have.

Flipping through the massive piece of legislation, one finds hundreds of statements that contain references to the Secretary of Health and Human Service's new powers: "the Secretary shall," "the Secretary shall require," "the Secretary shall establish a program," the Secretary shall promulgate a final rule," and "the Secretary shall determine the total amount [of money] the Secretary will make available." In some instances, the Secretary is granted not only the right to establish her own criteria for certain ObamaCare rules, but she may also set her own deadlines, establish new regulatory commissions and boards, and write her own standards and guidelines to govern her work.

In the midst of the growth of the administrative state, Congress occasionally exercises its oversight role and attempts to scrutinize the fourth branch of government. Take, for example, a recent letter from Senator Orrin Hatch and Congressman Dave Camp, in which the two Republicans asked HHS Secretary Kathleen Sebelius to explain the ObamaCare waivers that she has been granting, and the criteria used for determining eligibility for those waivers.

To date, Secretary Sebelius has not answered that letter. And why should she? ObamaCare clearly spells out all of her new powers and authorities, but the law says very little about Congressional oversight of her actions.

As Americans grow increasingly frustrated with the growth of the bureaucratic state, it is important to remember that Congress is not helpless in this process. Congress, in fact, is ultimately responsible for the administrative state. Congress gives the administrative state each of its regulatory powers, funds and authorizes all of the administrative state's spending, and rarely performs routine oversight to serve as a necessary check on the fourth branch's power.

James Madison, in Federalist No. 51, wrote: "A dependence on the people is, no doubt, the primary control on the government." The administrative state, because it is not dependent on the people and does not derive its powers from voters, operates completely outside of the Founders' vision for a limited, accountable government.


***Shonda Werry is a former staffer at the Senate Republican Conference from 2004 to 2007, and has extensive public policy experience. She is a graduate of the University of Chicago and holds a Master's Degree from Johns Hopkins University.