Too Big to Fail or Too Big to Control – What’s the Greater Risk? June 6, 1788, two weeks before New Hampshire would become the ninth and last state necessary to ratify the U.S. Constitution, James Madison remarked,

I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.

Madison’s wisdom and insight over 225 years ago seems as relevant today as it did then.  A similar caution by Jonathan Turley, penned in a WaPo piece this past week, warns of an increasingly unresponsive, behemoth administrative state that has morphed into the fourth branch of government.  Turley’s caution

There were times this past week when it seemed like the 19th-century Know-Nothing Party had returned to Washington. President Obama insisted he knew nothing about major decisions in the State Department, or the Justice Department, or the Internal Revenue Service. The heads of those agencies, in turn, insisted they knew nothing about major decisions by their subordinates. It was as if the government functioned by some hidden hand.

Clearly, there was a degree of willful blindness in these claims. However, the suggestion that someone, even the president, is in control of today’s government may be an illusion.

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

For much of our nation’s history, the federal government was quite small. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

There is a longer version of Turley’s article over on his blog, worth reading.  This is a sobering caution by Turley, a widely regarded socially liberal lawyer, scholar, and commentator, who teaches law at George Washington University Law School.

I’m reminded of a few years back, while spending some quality time with Title 40 of the Code of Federal Regulations – codified federal environmental regulations for those of you with better things to do with your time – I actually counted the total number of pages that made up 40 CFR.  I don’t recall the exact tally, but it was thousands of pages and, put end-to-end, filled the library stack with over nine feet of densely inked regulations.  This nine-feet of paper represents the exponential growth of federal environmental administrative law since the early 1970s, the advent of modern federal environmental laws.  While these laws and regulations have helped restore the environment over the last 40 years, some would argue the economic and social costs have far exceeded the benefits.  In 2012, Clyde W. Crews over at CEI wrote an interesting article on the growth and burden of the federal regulatory state.  And, although a bit dated yet still very relevant, Angela Logomasini in 2007 prepared a comprehensive overview of the growth of federal environmental laws and regulations.  I too have cautioned in recent years, as reflected here, on efforts to give the federal government more authority under the Clean Water Act.

The fact I have not seen a large constituency advocating for a fourth branch of government suggests to me that most Americans, liberal or conservative, would agree that an entrenched out of control agency in any context is not ideal.  However, supporters of the current administrative state make a number of arguments, like this one from “V. Zerda” in response to Turley’s commentary:

I’m not too sure of your basic calculations.  You are attributing the growth in administrative (civil service, I suppose you mean) to a possibly incorrect basis. The growth is really not exponential if you calculate population growth vs. civil service growth from 1790 to 2010 (~120X for population vs. ~2800X for government). That also fails to consider the great increase in geographic boundaries that has occurred over that time period, which might be presumed to require additional personnel. You also are failing to consider the increase in technology which also may require additional staff. Finally, I think you are forgetting the change in the world today. The effect of globalization is not simply economic. Because of these lacks in your commentary, it is difficult to say whether or what revamping of the civil service might be useful. I also think that you have underestimated changes in the common culture of the US that have likely had a large effect on our present governmental disfunction.

This notion that societal growth and complexity demands a large federal bureaucracy in order to control the attendant harms should be rejected as a false choice.  No doubt the world in which we live is different from what it used to be – so wasn’t the world of Madison’s relative to Napoleon’s – but does complexity necessarily beg for more top-down government control?  Or is there an entirely different approach, or nuances of our current system, that we are missing?

While I share Turley’s concern about the growth of the federal administrative state, it’s not just the growth of the federal bureaucracies that’s the problem, but rather the public’s thinking that bureaucracies, whether local or federal, are the best and only solution.  What’s clear is that administrative bodies themselves are neither good nor bad, but rather, as Turley reminds us, those with failed leadership and lack of accountability can pose serious threats to our civil liberties and freedoms.  Entrenched, unaccountable bureaucracies are an impediment to the common good.

Increasingly, society seems content with abdicating its responsibilities to government, which, in turn, is slowly destroying traditional notions of personal accountability, responsibility and incentives – an enduring moral order of sorts – that are fundamental to the concept of the common good.  As one who has long advocated for solutions to our environmental problems, this has manifested itself in a phenomena I refer to as the “bureaucratization of environmentalism“, which, although steeped in good intentions, results in unintended consequences.  This mistaken belief that somehow a top-down approach is superior to bottom-up solutions needs to change – society will never ever regulate itself out of its messes.  As the world’s population continues to grow and human interactions marked by increasing complexity, the administrative state will continue to play an important role.  However, the nature and scope of its role must also change if we are to maintain liberty and freedom, and restore the common good.

[reposted from May 2013]