We’re nearly a month away from the inauguration of Donald Trump as president of the United States and the hopeful fulfillment of the political promise to “drain the swamp” (i.e. to dredge away the muck of beltway corruptocrats and bureaucratic sludge).
The widely presumed appeal of Trump was the chance for a dramatic and fresh change to give the American people a government with more accountability, and less control emanating from the unelected administrators. At least, that has been the sales pitch.
And there have been several means of drainage proposed over the past few weeks to include a longer “cooling off” period for prospective lobbyists, a federal hiring freeze, and a rule that would require two regulations be deleted for every one created, but one of the biggest means remains yet unnamed: dismantling an unconstitutional fourth branch of government operating right under our noses.
These are federal commissions (e.g. the Federal Elections Commission, the Securities and Exchange Commission, the Equal Employment Opportunity Commission, and others) designed to operate independently of the three branches — and enumerated roles — of government.
Much has been said about the rise of judicial supremacy in transforming the federal judiciary into a super-legislature. Much has been said about the inimical rise of the administrative state — the growing trend of regulations and interventions in our lives enacted not by Congress, but by faceless bureaucrats.
However, what is even worse than administrative fiat within the designated executive departments is the existence of unaccountable bodies that Congress has created over decades. We are referring to the dozens of commissions and boards that wield enormous power but are considered by the courts and political elites as independent from the executive branch. This means that they get to engage in quasi-judicial and quasi-legislative functions even while quite evidently wielding the police power of an executive.
The problem: If they are not subject to the policies or personnel choices of the president, then they are not really part of the executive branch. But given that they are obviously not a part of the legislative and judicial branches either, how can they operate autonomously ? And how can they still wield powerful executive authority without oversight of the chief executive and his officers?
Rather than being independent and “above” politics, these commissions are largely unaccountable to the American people, and soak up powers and responsibilities from the branches of government that actually are.
While the separation of powers problem is evident throughout the executive branch of government — with agency officials engaging in quasi-legislative functions on a daily basis — at least the president could get rid of the personnel and change the policies within the confines of the statutory authority from Congress. Not so with commissions like the EEOC; they are “super executive” agencies that answer to nobody.
Thus, even if conservatives succeed in getting Trump and the GOP Congress to do the right thing on religious liberty, for example, we will have the liberal holdovers at the Equal Employment commission promoting the sexual identity agenda with unaccountable regulations (legislation), the power to fine and police adherence to those regulations (executive), and the ability to adjudicate individual employer-employee cases that arise under those regulations (judicial).
Indeed, these are the swampiest of swamps in the D.C. cesspool.
Separation of Powers 101 lost on courts, elites
Unfortunately, Supreme Court majorities, beginning with the FDR era, began treating these commissions as fourth branches of government, with complete disregard for their constitutional soundness. In cases from Humphrey’s Executor v. United States in 1937, to Morrison v. Olson in 1988 (in which Justice Antonin Scalia was the lone dissenter) these bodies have enjoyed the projection of judicial fiat as well, in order to inoculate them from presidential powers to remove.
The form and function of bodies like these, as legal scholar Philip Hamburger put it in his 2014 book, “Is Administrative Law Unlawful?,” are not 20th-century inventions. Rather, they have been with us for quite some time, and are the exact kind of thing that the framers of the Constitution sought to prevent.
“Hamburger […] suggests that administrative law — by which he means legally binding rules that are developed through unilateral actions by the executive branch — has existed since colonial times and beyond,” explains George Mason University’s David Bernstein in his review of Hamburger’s book. “And that claims of administrative autonomy are direct descendants of the claims of the English monarchy to executive omnipotence. The Framers of the Constitution were well aware of such claims, and utterly rejected them.”
Like all populist ideas from the Progressive Era, these bodies were designed to give power back to “the people” under the utopian guise of rising above corruption and politics. Instead, like all deviations from the Constitution, they accentuate and exacerbate the problem by creating even less accountable silos within government that are controlled by a narrow field of unelected “experts” who answer to nobody.
One of the most notable examples of this sentiment (a basic explanation of the importance of separating government powers) can also be found in the original Massachusetts Constitution, ratified in 1780:
“[T]he legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”
While no system of government is perfect, the separation of powers into three branches of government, and then further into the separated governance of states, gave us the best system of governance in the history of nation-states.
Now, almost every systemic problem within our government stems from one branch of government shirking its existing responsibilities or powers and usurping the powers of another branch. In the case of independent commissions, Congress sought to compensate for its lazy disregard for the powers it does have over the executive branch by creating a new power over the executive that never existed.
What are these bodies if not state entities that act completely outside of the will of the people? This is what our founders rejected, and this is what Congress and President Trump should also reject in the new year going forward.