Partisans of an “objective, non-partisan” civil service should be very nervous; rule of law supporters should be ecstatic. Why?
Because the administrative state is now forced to be more accountable, all thanks to a little-covered move by the Trump Administration, as part of its concerted campaign to rein in the vast “fourth branch” of government. An executive order issued in July grants agency heads greater discretion over the selection of administrative law judges (“ALJs”).
That may not sound particularly important, but it is. ALJs—in the words of Associate Justice Elena Kagan, writing for the 7-2 majority in Lucia v. SEC (2018)—“exercise authority ‘comparable to’ that of a federal district judge conducting a bench trial.” Which is to say, their powers are extensive.
According to the Office of Personnel Management, as of December 2011, there were nearly 3 million federal civil servants, 2,000 of which are ALJs. ALJs drive the executive branch’s regulatory actions; they are a small but extremely important subset of the administrative state. President Trump’s administration has just bound them more tightly to the political rule of “We the People.” The president has the constitutional authority under Article II section 2 to appoint “Officers of the United States.” The bureaucracy, rightly understood, exists to execute the laws passed by Congress, subject to the powers and control of the president—not to act independently of the president and, ultimately, the people, to whom the president (and the whole government!) is supposed to answer. This is thus a necessary and justified step in restoring constitutional equilibrium in its original sense.
No less a legal titan than Chief Justice John Roberts has been skeptical of the administrative state and has taken note of the core concern of its detractors (i.e., “anti-administrativists”). Here’s Chief Justice Roberts in Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (2010):
One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people. (Emphasis added.)
The order is a good first step. It creates the conditions under which the Supreme Court will have to grapple further with the place of ALJs in our constitutional system. In Lucia, the court decided the status only of the ALJs housed in the Security and Exchange Commission (not across the whole government, as the order does), and held, through a straightforward application of on-point precedent, that the SEC’s ALJs are indeed “Officers of the United States” and for that reason are subject to the Constitution’s appointments clause. That means that they only can be appointed by special, high-level officials: “the President, ‘Courts of Law,’ or ‘Heads of Departments.’”
The Lucia ruling is narrow, but the energy on this issue is clearly on the side of anti-administrativists, or those who are wary of the unbridled techno-bureaucratic rule exemplified by the modern administrative state.
The D.C. Circuit’s Judge Brett Kavanaugh, the second candidate President Trump has nominated to the Supreme Court in his first term, has expressed unease with the discretion many judges have afforded to regulatory agencies. While he isn’t a bomb-thrower like Boston University School of Law’s Gary Lawson, he will certainly do his part to rein in executive agencies that for decades have been contemptuous of Congress (which allegedly is the supreme branch of the federal government—but a branch which, in recent decades, has atrophied: unable, or, perhaps, unwilling, to perform even basic, let alone robust, oversight of these many agencies).
At bottom, this is about sovereignty, as Chief Justice Roberts so succinctly stated. The ALJs—and all other major government officials who wield, in the words of Buckley v. Valeo (1976), “significant authority pursuant to the laws of the United States”—must be subject to the will of the people, to their regular electoral control. If not, then that means (at least implicitly) that someone or something is superior to the people.
But that conclusion is noxious to America’s unique answer to the primary question that faces any political community: Who rules? Here, the people rule. To suggest otherwise is to offend the spiritual charter of our nation, the Declaration of Independence, and its radical claim that, to secure their natural rights, people establish governments that “deriv[e] their just powers from the consent of the governed” (emphasis added). Further, it flies in the face of the Declaration’s greatest expositor, President Abraham Lincoln, and his poignant summary of the purpose of our nation: to be a government “of the people, by the people, for the people.” We have given no sanction to an enlightened ruling class ordained by God to lord its so-called superiority of status, achievement, whatever, over the rest of us. Those who, in their hubris, think they can rule us better than we can govern ourselves are not welcome in America. It’s just that simple.
But, like the peoples of other nations, Americans have “[f]rom time to time … been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people.” The genius of the American system, however, lies in the fact that, unlike other nations, we have yet to fully succumb to that temptation, the temptation to abdicate the freeing burden of self-governance—if only because it would be absurd to do so. After all, “[I]f no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” Therefore, as President Reagan instructs, “All of us together, in and out of government, must bear the burden.”
The Declaration, Presidents Lincoln and Reagan, Chief Justice Roberts, and so many others versus egotistical technocrats “in a far-distant capitol [who think they] can plan our lives for us better than we can plan them ourselves”?
I know where I stand.
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