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Published online by Cambridge University Press: 11 October 2021
Contemporary critiques of the administrative state are closely bound up with the distinctively American doctrine that republican freedom requires that the legislative, executive, and judicial powers be exercised by separate and distinct branches of government. The burden of this essay is to argue that legislative delegation and judicial deference to the administrative state are necessary, or at least highly desirable, features of a democratic separation of powers regime. I begin by examining the historical and conceptual roots of the separation of powers doctrine, paying particular attention to the unique way in which it was adapted to fit the American case. I then examine three concerns that the resulting constitutional system raises about the republican freedom of those who are subject to it—which I call the accountability, legitimacy, and stability concerns—and argue that the administrative state is a useful, albeit imperfect, tool for reducing the unavoidable tension between these concerns. The thrust of this discussion is to push us away from “in principle” objections to the administrative state, and back toward the kinds of prudential considerations that are associated with ordinary liberal politics. More importantly, the aim of the essay is to encourage sober reflection on the real dangers that face the American constitutional system under current circumstances.
Department of Political Science, Ohio State University, email@example.com. I’m grateful to Dave Schmidtz and to the other contributors to this volume for their helpful comments on an earlier draft of this essay. Useful feedback was also provided by an anonymous referee for the journal. The errors that remain are entirely my own.
1 Here and in the following two paragraphs I draw on ideas that are developed further in my book Liberal Freedom (New York: Cambridge University Press, forthcoming).
2 In order to reject this premise, as some of my colleagues in this forum will want to do, we would have to explain how the various externalities that are generated by market behavior, ranging from pollution and environmental degradation to unsafe products and working conditions to monetary instability, would otherwise be managed—or why they don’t need to be.
3 Self-funding agencies are a partial exception, but Congress can of course still revoke their funding authority.
4 Even here there’s some hesitation; Gary Lawson points out, for example, that “the Court believes—possibly correctly—that the modern administrative state could not function if Congress were actually required to make a significant percentage of the fundamental policy decisions”: Lawson, Gary, “The Rise and Rise of the Administrative State,” Harvard Law Review 107 (1994): 1241 CrossRefGoogle Scholar (emphasis added). Gillian Metzger has observed more recently that “judicial anti-administrativism … has a notably rhetorical air, seemingly unwilling to follow through on the radical implications of its constitutional complaints” in “1930s Redux: The Administrative State Under Siege,” Harvard Law Review 131 (2017): 95.
5 Lawson, “Rise and Rise of the Administrative State,” 1233.
6 Pestritto, Ronald J., “The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis,” Social Philosophy and Policy 24 (2007): 24 CrossRefGoogle Scholar (emphasis added). As Pestritto points out, the Progressive-era reformers were candid about the incompatibility between the traditional separation of powers doctrine and their preferred model of governance.
7 Donald Lutz finds that Montesquieu was cited twice as much as the next most-cited figure (Blackstone) in the 1780s, and four times as much during the crucial period of 1787–1788. Indeed Montesquieu accounted for nearly 30 percent of all citations on the Federalist side, and for 25 percent of citations on the Anti-Federalist side, during the ratification debates: Lutz, Donald S., “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78 (1984): 189–97.CrossRefGoogle Scholar
8 The implications of republican freedom have been worked out most carefully in recent years by the philosopher Philip Pettit; see in particular his Republicanism: A Theory of Freedom and Government, 2nd ed. (New York: Oxford University Press, 1999 ), and more recently in On the People’s Terms: A Republican Theory and Model of Democracy (New York: Cambridge University Press, 2012). For my own understanding of republican freedom, which is largely consistent with Pettit’s, see MacGilvray, Eric, The Invention of Market Freedom (New York: Cambridge University Press, 2011)CrossRefGoogle Scholar, esp. chap. 1.
9 de Montesquieu, Charles, The Spirit of the Laws , trans. Cohler, Anne, Miller, Basia, and Stone, Harold (New York: Cambridge University Press, 1989), 157, 155 Google Scholar (book 11, chapters 6, 3, and 4). A more accurate translation of the first sentence of the latter passage would be to say that “one can fear that the same monarch or senate would make tyrannical laws in order to execute them tyrannically” (ne fasse … pour les executer … ).
10 The most prominent skeptic was probably David Hume, who argued that corruption in British public life “is chiefly to be ascribed to our established liberty, when our princes have found the impossibility of governing without parliaments, or of terrifying parliaments by the phantom of prerogative”: “Of Refinement in the Arts” , in Political Essays, ed. Knud Haakonssen (New York: Cambridge University Press, 1994), 111.
11 Polybius, The Histories, book 6, chapters 2-10, quoting Ian Scott-Kilvert’s translation in The Rise of the Roman Empire, ed. F. W. Walbank (New York: Penguin Press, 1979), at 302, 312. Polybius’s analysis builds on the famous sixfold typology of constitutions that is laid out in Book 3 of Aristotle’s Politics, although Aristotle, unlike Polybius, treats democracy as a “perverse” form of rule.
12 Polybius, Histories, 317–18 (book 6, chapter 18).
13 Cicero, De Re Publica, book 1 §§41–55, 65–9, book 2 §§57, 65; Aquinas, Summa Theologiae 1a2ae q 95 art 4 resp and q 105 art 1 passim; Machiavelli, Discourses on Livy, book 1, chapters 2–6.
14 Montesquieu, Spirit of the Laws, 155, 164 (book 11, chapters 4 and 6). The Platonic ring of the latter quotation is an artifact of translation; the French reads “Ces trois puissances devraient former un repos ou une inaction …”
15 Wootton, David, “Liberty, Metaphor, and Mechanism: ‘Checks and Balances’ and the Origins of Modern Constitutionalism,” in Womersley, David, ed., Liberty and American Experience in the Eighteenth Century (Indianapolis, IN: Liberty Fund, 2006), quoted at 243.Google Scholar
16 There are at least a dozen references in the Federalist to the checking of power, but only three references to a constitutional balance of power (as opposed, for example, to a military balance of power). The first is a passing reference in number 9 to “legislative balances and checks”; Hamilton is presumably alluding to bicameralism, where a balance between the houses was indeed the goal. The second is a reference in number 71 to “the balance of the constitution,” where Hamilton defends the length of the president’s term by warning about “[t]he tendency of the legislative authority to absorb every other.” The aim here is not to “balance” the legislative and the executive, but rather to ensure that the former doesn’t eclipse the latter altogether. The third reference to balancing comes in a passage from Jefferson’s Notes on the State of Virginia that Madison criticizes in number 47. Jay refers in number 2 to a “well-balanced government,” but it’s not clear from the context what he means by that phrase.
17 As A. V. Dicey observes, “Montesquieu misunderstood on this point the principles and practice of the English constitution, and his doctrine was in turn, if not misunderstood, exaggerated, and misapplied by the French statesmen of the Revolution,” for whom the separation of powers “mean[t] neither more nor less than the maintenance of the principle that while the ordinary judges ought to be irremovable and thus independent of the executive, the government and its officials ought (whilst acting officially) to be independent of and to a great extent free from the jurisdiction of the ordinary Courts”—a principle that “lends itself easily to the justification of tyranny”: A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (Indianapolis, IN: Liberty Classics, 1982 [1915/1885]), chap. 12, quoted at 220, 226.
19 Manin, Bernard, “Checks, Balances and Boundaries: The Separation of Powers in the Constitutional Debate of 1787,” in Fontana, Biancamaria, ed., The Invention of the Modern Republic (New York: Cambridge University Press, 1994), 45–46 (original emphasis).Google Scholar
20 The point is nicely illustrated by the passage of the Affordable Care Act in 2009–2010. Many progressives believe that the health care reforms implemented by the ACA are deficient. To what should they attribute those deficiencies? Are they due to a failure of leadership or policy acumen on the part of President Obama or his cabinet officials? The inconvenient ideological positioning of the rightmost Democratic senator? The procedural rules of the Senate itself? The refusal of Congressional Republicans to cooperate in the legislative process? The Supreme Court’s finding that a key portion of the law was unconstitutional? Each of these (not mutually exclusive) explanations—and this is of course not an exhaustive list—is plausible. So what’s a progressive voter to do? Similarly, many conservatives are equally convinced, albeit for very different reasons, that the reforms implemented by the ACA are deficient, and yet the Republican Party failed to repeal and (or) replace it in the two years (2017-2018) when it had unified control of the federal government, despite the fact that this had been a central campaign promise for four consecutive election cycles. To what should they attribute this failure? Was it due to a failure of leadership or policy acumen on the part President Trump or his cabinet officials? The inconvenient ideological positioning of the leftmost Republican senator? The procedural rules of the Senate itself? The refusal of Congressional Democrats to cooperate in the legislative process? The Supreme Court’s failure to find key portions of the law unconstitutional? Again each of these (not mutually exclusive) explanations is plausible. So what’s a conservative voter to do?
22 This may explain why federal oaths of office emphasize the duty of fidelity that elected officials owe to the Constitution: the president swears to “preserve, protect and defend the Constitution of the United States,” and members of Congress swear to “support and defend the Constitution of the United States.”
24 This is of course a less likely outcome given the many veto points in the system.
25 Consider, for example, the perfectly intelligible accountability incentives that Congressional Republicans had in refusing to cooperate in the drafting of the Affordable Care Act or in the passage of routine legislative “fixes” after it became law—and the equally intelligible accountability incentives that President Obama had to take extralegal administrative action in order to ensure that the law worked as smoothly as possible despite their intransigence.
26 There’s disagreement about whether the evidence of Congressional polarization as measured by voting records reflects genuine polarization among members, or whether it’s an artifact of effective agenda control by party leadership. From the standpoint of the argument being offered here, it doesn’t matter which of these explanations is correct, since either scenario will exacerbate the underlying tension between accountability and legitimacy—although the available remedies will of course be very different in each case.
27 Between 1897 and 1969, the same party controlled the Presidency and both houses of Congress more than 80 percent of the time (29 out of 36 Congresses); since 1969 this has only been the case about 30 percent of the time (8 out of 27 Congresses).
29 For a useful analysis, see Moe, Terry M. and Caldwell, Michael, “The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems,” Journal of Institutional and Theoretical Economics 150 (1994): 171–95Google Scholar. As Moe and Caldwell point out, the American separation of powers system lies at one end of a continuum at the other end of which lies the two-party “Westminster model” found in the United Kingdom. The administrative features of multiparty parliamentary regimes can be expected to fall somewhere between these two extremes.
30 Montesquieu, Spirit of the Laws, 166 (book 11, chapter 6).
31 Montesquieu discusses the fate of the other three republics—especially the Roman one —in his Considerations on the Causes of the Greatness of the Romans and their Decline (1734).
32 Montesquieu, Spirit of the Laws, xliv, 43 (author’s foreword; book 5, chapter 3).
33 Ibid., 325–26 (book 19, chapter 27).
35 Ackerman, “New Separation of Powers,” 647.
36 Montesquieu fails to consider this possibility because he conceives of the judicial power as being exercised by temporary “tribunals”—juries—rather than by judges, a fact that distinguishes it from its “visible” executive and legislative counterparts: Spirit of the Laws, 159, 325 (book 11, chapter 6; book 19, chapter 27).
37 For an influential analysis of these developments see Mann, Thomas E. and Ornstein, Norman J., The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (New York: Oxford University Press, 2006).Google Scholar
38 Moribund, but not entirely dead: the political theorist John McCormick has called for the creation of a “People’s Tribunate,” to be populated by citizens selected by lot but excluding members of the wealthiest 10 percent of households and anyone who has previously held significant public office. This Tribunate, like its Roman namesake, would have the power to veto policies made by the “socioeconomic and political elites” who control the traditional branches of government, and could also appeal directly to the people to make policy via referendum: McCormick, John P., Machiavellian Democracy (New York: Cambridge University Press, 2011), 183–85.CrossRefGoogle Scholar
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