The Conservative Sensibility Read online

  Never mind that the Constitution’s Take Care Clause makes the president responsive to what Congress does. And regarding only one matter, the president’s conditional veto, does the Constitution make the president’s will superior to simple majorities in both houses of Congress. Yet the will of the president, although far from dispositive in setting public policy, is now superior. This is so largely because presidents have the means to arouse public passions, and no longer does a “common law of presidential behavior” restrain them from doing so. The controlling and regulating of the public’s passions are not supposed to be done by government officials acting as Platonic guardians. Rather, the controlling and regulating are to be done by the government’s architecture, by the tension between, and the mutual wariness of, its competing institutions. These should temper public passions by channeling them through countervailing institutions that compel the passions to be felt only indirectly by those making policy. So, when Madison said the government is the controller and regulator of the passions, he meant that the Constitution itself is. And for quite a while it was.

  For about 150 years after the Founding, many political controversies at the federal level were apt to begin with debate about constitutional principle: Did the federal government’s enumerated powers entitle it to act on a particular subject? Only after this debate came the policy discussion. Today, almost nobody in either the legislative or executive branch believes that there is any subject, any sphere, from which the federal government is constitutionally excluded. The eclipse of that idea does not, however, mean that prudence should not do what constitutional principle once did: restrain the federal government’s itch to be active everywhere. This itch is discrediting the federal government and making a mockery of federalism by reducing the states to administrators of federal undertakings.

  James Q. Wilson noted that from the Founding until the Civil War the defining problem was that of firmly grounding the federal government’s legitimacy.35 From the Civil War until the New Deal the defining problem was power: Under what limits did the federal government operate? From the New Deal until recently, the defining problem was representation: Were all groups appropriately involved in Washington’s increasing importance? Today, Wilson said, the defining problem concerns collective choice: Can a federal government that acknowledges no limits to its scope, and that responds promiscuously to the multiplying appetites of proliferating factions, make choices that serve the society’s long-term interests? The answer, based on the avalanche of evidence from current governance, is an emphatic “no.”36 The evidence is in the rise of the administrative state and the fall of fiscal responsibility.

  FDR’S “TEMPORARY DEPARTURE”

  It has been eight decades since President Franklin Roosevelt, in his first inaugural address, called for a “temporary departure from the normal balance” between “executive and legislative authority.” Since 1933, the departure has become permanent. It is the new normal. Running for president in 2008, Barack Obama said, “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president.”37 Hardly. As president, he said that although it would be “nice” for Congress to “help” him, he would not wait for it.

  Increasingly, such promulgating and revising are done by or through regulatory agencies of the administrative state. Concerning which Madison was, as usual, unusually farsighted. Writing in 1791 in anxious response to Hamilton’s plans for national direction of economic development, Madison foresaw this practice taking a toll first on federalism and then on the federal government’s separation of powers. As the federal government began to exercise powers and claim responsibilities properly belonging to state and local governments, the federal legislature would find itself inundated by multiplying new tasks, and this would “force a transfer of many of” these functions from the legislative branch “to the executive department.” Thus did Madison discern the administrative state in embryo.38 In 1887, Congress created the Interstate Commerce Commission, which was the fetus of the administrative state. That state was a muscular and still-growing creature in 2016, when Congress passed 2,966 pages of laws and federal agencies churned out thirty-two times more pages—97,110—of new regulations.

  Calvin Coolidge, the longest-serving president in the decade before the administrative state was put firmly in place, already sensed that the transformation of the federal government was far advanced: “This is not the government which was put into form by Washington and Hamilton, and popularized by Jefferson. Some of the stabilizing safeguards which they had provided have been weakened.”39 Notice Coolidge’s sly way of saying something that is correct but also is discordant with American sentiment: Washington and Hamilton did the most to create a constitutional order that Jefferson merely “popularized.” Coolidge, however, could not have had any inkling of how the administrative state would evolve. Gary Lawson has provided a justly famous description of the working of one molecule of the administrative state, the Federal Trade Commission:

  The [Federal Trade] 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. The 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.40

  A quarter of a century on, the workings of the administrative state have become much more opaque, recondite, and untethered from accountability. This has now been underway for almost a century and has had distinguished advocates. Two of the leading intellectual lights of the New Deal were James Landis and Felix Frankfurter, both of whom came to Washington from Harvard Law School. They dismissed as a “jejune abstraction” the idea that Congress cannot delegate legislative powers to executive agencies. They were rejecting an idea that had a distinguished pedigree: John Locke argued that a legislature “cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others.” Perhaps they should not, but they certainly can and regularly do. Modern government operates on the assumption that Landis and Frankfurter were correct in asserting “the inadequacy of a simply tripartite form of government to deal with modern problems.”41

  The various agencies that are in various ways emanations of the executive branch have become so numerous, so collectively enormous, and so central to governance that they almost constitute a fourth branch of government. Philip Hamburger says that “administrative law found a place in American government when it still could be believed that administrative regulations and adjudications would merely be exceptions within the traditional constitutional structure.” By now, however, “the exception has swallowed the rule.” Administrative law has “dwarfed statutory law and has become the federal government’s pervasive mode of dealing with the public.” Federal agencies’ regulations filled 18,000 pages of the Code of Federal Regulations in 1938 and 175,000 by 2014. The Consumer Financial Protection Bureau, which did not exist until 2010, in 2014 churned out 1,099 pages of regulations and explanatory material pertaining to just one of the CFPB’s concerns, mortgage lending.42

  Although Madison could hardly have imagined, let alone anticipated, this traducing of the separation of powers, it fits the warning he issued in Federalist 47: “The accumulation of all p
owers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”43 Candid progressives confess, or used to, that this “accumulation” is not a merely ancillary or unintended consequence of the administrative state. Today, progressives believe that this is the point of the administrative state, which was conceived as a cure for the great defect of the Founding, the separation of powers. In 1803, in Marbury v. Madison, in which judicial review was firmly planted in American political practices, Chief Justice John Marshall said that it is “emphatically the province and duty of the Judicial Department to say what the law is.”44 So, if Marshall could have imagined today’s administrative state, he would not have considered much of what this state now does compatible with the rule of law.

  Senator Mike Lee, a Utah Republican, has a didactic disposition, as visitors to his office discover when they see there two stacks of papers. One, a few inches high and containing about 800 pages, is all the laws passed in a recent session of Congress. The other stack, about eleven feet tall and containing about 80,000 pages, is all the regulations proposed and adopted in one year by executive agencies. The lesson that Lee wants visitors to his office to learn, and to be dismayed about, is that Congress is no longer the primary institution of American’s self-government. So the lesson is that Lee’s primary job, that of legislator, has been moved to the margins of American governance. The evidence of this is everywhere and overwhelming. For example, the 2010 Dodd-Frank Act reforming financial regulations was less important for what it explicitly did than for what it directed others to do: It mandated almost 400 rule-making decisions.

  Lee gives two especially striking examples of the attenuation of representative government by the transfer by Congress of its legislative power to executive agencies. During the Depression, Congress authorized the Department of Agriculture to aid some farmers (and to injure many more consumers) by increasing the price of certain agricultural products. The department did this by setting quotas that would limit the sale of these products, which included oranges.45 So, from 1933 until 1992, when the Depression was a fading memory, the government prevented a third of navel oranges from being sold in the American market. The Department of Agriculture created a Navel Orange Administrative Committee, and a private agribusiness, Sunkist, was empowered to nominate five of the committee’s eleven members. A direct phone line connected the committee with Sunkist, and the committee staff was covered by Sunkist’s pension plan. So legislative power had been ceded by Congress to an executive department that in turn ceded some of it to a private interest. The involvement of the American people’s elected representatives in this policy was vanishingly small.

  With the Clean Air Act, Congress empowered the Environmental Protection Agency to put whatever limits it wanted on whatever pollutants the limiting of which it considered “requisite to protect the public health.” Soon the EPA construed this grant of power over pollutants as allowing it to mandate tolls on some New York City bridges in order to raise funds to support mass transit, thereby reducing air pollution from automobiles.46 In response to angry constituents, some members of Congress representing the city—members who had voted for this capacious grant of policy-making power to the EPA—led a march to protest what they had done in delegating their policy-making responsibilities.

  Today, the number of criminally enforceable federal regulations might—no one can say with certainty—exceed 300,000.47 Most of these are made by executive agencies. They, or other agencies, decide how violations should be punished. In this era of institutional derangements, Lee notes, “a single statute empowering the Food and Drug Administration to make rules for ‘medical devices’ had led to the FDA’s regulation of weight-lifting equipment, mouthwash, sunglasses, and television remote controls.”48 Many members of Congress were incensed when President Barack Obama declared, “If Congress won’t act, I will” and proceeded to push the limits of—or to demonstrate that there are few limits to—unilateral presidential powers.49 But he did this in a context conditioned by decades of Congressional sloth and carelessness in forfeiting policy-making powers. Congress’ renunciation of its responsibilities has contributed to a condition far worse than Madison could have imagined when he wrote in Federalist 62: “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?”50 This is why the rule of law is the ultimate casualty of Congress’ dereliction of duty that makes the administrative state rampant. As Ocie and Carey Mills learned, and Senator Lee laments.

  Congress stipulated in the Clean Waters Act that landowners are required to obtain a permit before discharging materials into “the waters of the United States.” But Congress neglected to define what it meant by such waters. So the EPA and the Army Corps of Engineers did the defining. They said that the “waters” in question include “areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” Ocie Mills and his son, Carey, built a house near Florida’s Escambia Bay, on wooded land that contained a small patch of marsh grass. They were prosecuted for discharging a “pollutant”—dry sand they used in constructing their house—into “navigable waters” because their plot of land contained, although not where they built their house, marsh grass. The judge at the Millses’ jury trial declared that a “layman” would not reasonably expect the term “waters” to apply to “land that appears to be dry, but which may have some saturated-soil vegetation, as is the situation here.” But he had to sentence the father and son to thirty-three months in prison in obedience to a rule made by an executive agency because Congress decided “to abdicate its power to define the elements of a criminal offense.”51

  Progressives hoped that as governance became more presidential, the public would increasingly acquiesce in the power and autonomy of administrative agencies. The progressive’s hope was that by making a popular, even charismatic president the focus of the nation’s political consciousness, the public could be content to be governed by supposedly detached, disinterested experts who are cloaked with democratic legitimacy because they are formally obedient to the will of a president enjoying a national mandate. And in fact, the public is remarkably docile about government micromanaging life.

  Today the federal government regulates the kind of light bulbs we can use and the amount of water that can flow from our showerheads and through our toilets. The pell-mell proliferation of laws has profound implication for the criminal justice system. As Ilya Somin says, ignorance of the law is a) not a valid excuse for breaking the law, and b) inevitable. Hence the title of a book by Harvey Silverglate, a civil liberties lawyer: Three Felonies a Day. That is Silverglate’s somewhat puckish but essentially serious estimate of the number of felonies an American commits on a given day. He recounts that young prosecutors in a particular office used to play a game in which someone would pick a famous person—say, Mother Teresa or William Faulkner—and the rest would search for some law the person could be indicted for breaking.52 As Lavrentiy Beria, the head of Stalin’s secret police, said and, during the 1930s purge trials and the Great Terror, demonstrated, “Show me the man and I’ll show you the crime.” This is not to say that the glut of laws is making the United States ripe for such state-administered domestic repression. It is, however, to say that a surfeit of laws provides, in the nooks and crannies of the sprawling government, rich opportunities for prosecutorial and other abuses. When in 1780 John Adams wrote into the constitution of
the state of Massachusetts the commitment to a “government of laws, not of men,” he perhaps assumed that the rule of law meant the rule of laws, no matter how many of them there might be.53 He could not have imagined his country today.

  Charles Evans Hughes was governor of New York (1907–10), then Supreme Court justice (1910–16), and then almost became president: A switch of 1,711 votes in California would have given the 1916 election to him rather than Woodrow Wilson. Next, Hughes was secretary of state (1921–25). This man of vast experience called the Constitution “the greatest instrument ever designed to prevent things from being done.” Well, yes, to this extent: By its explicit language it forbids the doing of some specific things—abridging freedom of speech, establishing religion, conducting unreasonable searches and seizures, etc. But by its structure it stipulates how the general business of government shall get done. It does not prevent things from being done, it just makes the process—assembling concurrent majorities: House, Senate, and presidential—somewhat difficult. During the Obama administration, however, when the impatience of a progressive president was at its peak, and (hence) so were academic and media lamentations about “gridlock,” Congress passed the most sweeping social policy legislation since the enactment of Medicare and Medicaid in 1965 (the Patient Protection and Affordable Care Act, aka Obamacare) and the most ambitious regulation of the nation’s financial system since the New Deal (the Dodd-Frank legislation).