The US federal government is divided up into a variety of institutions, with the three main “branches” of government designed to compete against each other. Theoretically, these three branches were initially thought to place checks on the other branches of government, thus minimizing abuses of power by the federal government overall.
Things haven’t really worked out that way. Thanks to the rise of political parties, coordination between the branches — along party lines — has often replaced competition between the branches. Moreover, as political parties vie for the a controlling majority in the various branches, they are loath to limit the power of these institutions lest these partisans limit their own power in the process. Nor do the different branches represent different socio-economic groups in the manner imagined by John Adams in his Defense of the Constitutions.
So weakened had this imagined separation of powers become by the time of the New Deal that Franklin Roosevelt asserted during the days of his court-packing scheme that the various branches of government existed to work together, rather than to mutually obstruct each other. In a 1937 “fireside chat,” Roosevelt claimed the federal government is
a three-horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government – the Congress, the Executive and the Courts. Two of the horses are pulling in unison today; the third is not.
FDR’s point was that the Supreme Court was being obstructionist, and it ought to conform itself to the other two branches of government, since it was the duty of each branch to assist the other branches in “plowing the field.”
The fact many people would find this theory remotely plausible speaks to the magnitude of the public’s disregard for the notion the division of the federal government into branches was supposed to prevent government action, not facilitate it.
Not All Branches Are Equally Terrible
FDR, of course, is the poster child for claims the presidency has become lopsidedly more powerful than the other branches of government. Through the party structure, FDR was able to dominate Congress, and through the cult of personality that surrounded him, he was even able to intimidate the Supreme Court as well.
But FDR certainly isn’t the only example of how the presidency has come to be the driver behind most of the federal government’s worst abuses and usurpations of power.
For detailed accounts of these many crimes, the reader may consult Reassessing the Presidency, published by the Mises Institute in 2001.
In it, the authors explore how the presidency has greatly expanded its power at the expense of Congress (of, of course, ordinary Americans).
This has been made possible by both inaction and support from the other branches. For example, except in rare cases, the Supreme Court has tended to defer to the other branches of government — and especially the presidency — when the court perceived both of the other branches were unlikely to oppose the court’s decisions on a topic.
Meanwhile, the Congress’s danger has mostly manifested itself through inaction and through its deference to both the Presidency and the Supreme Court. Over the past century, Congress has repeatedly handed over its lawmaking authority to the executive branch and to a variety of independent regulatory agencies.
The Rise of the Fourth Branch
This capitulation to the presidency and the administrative state, however, has enabled what has become an essentially independent fourth branch of government. Yesterday, in an article titled “The Deep State: The Headless Fourth Branch of Government,” I described how the regulatory and national-security agencies of the executive branch have evolved over the past century to become more or less autonomous in their own right.
These organizations are sometimes collectively called “the deep state,” and their are characterized by a lack of responsiveness to the electorate or to any other branch of government.
Although the president is technically the head of these agencies, he can only count on cooperation if there is general agreement among the agencies’ personnel that the president’s agenda does not threaten them. In other words, the president can often count on cooperation from this deep state to expand the executive branch’s power. These same agencies, however, tend to place insurmountable obstacles in the way of any president who might attempt to significantly curtail the powers of the federal bureaucracy.
While the president’s formal power is certainly quite vast, the informal power of this permanent bureaucracy is much greater. The agency personnel can usually wait out any president, and if a president becomes too inconvenient, these same bureaucrats can engage in a variety of investigations, indictments, and leaks designed to undermine the president. What they do is often secret, protecting it from public scorn.
The fact many of these bureaucrats have tenured positions, and function largely in the shadows, increases their power further. Even enormous failures on their part — as evidenced in the failure to prevent 9/11, or to “win” the failed War on Drugs — only leads to even larger budgets and even broader prerogatives.
From Worst to Least-Awful
Since the New Deal, and especially since 9/11, I suggest this fourth branch of government has actually become the most dangerous one. Ranking the branches of government from the worst to least bad, it looks like this:
The Permanent Administrative State
The Supreme Court
The bureaucracy, as we’ve seen, is dangerous largely because of its permanence and the lack of any means in ensuring accountability. While elected officials come and go, career bureaucrats (military and otherwise) are more or less permanent. Moreover, since the other branches depend on the bureaucracy to enforce the “rules,” there is no means of enforcing accountability on the bureaucracy beyond the short term.
The Presidency, on the other hand, is dangerous for both administrative and political reasons. It can use hero worship and mass media to ram through legislation. The President can also issue executive orders, essentially creating new legislation without Congressional approval.
The problem with the Supreme Court stems largely from its exalted position in the minds of voters. Polls show Americans trust the “judicial branch” more than either the Presidency or Congress. Thus, when the Supreme Court hands down its decisions, these decrees are often considered to be indubitable fait accomplis. On the other hand, the court has no means of enforcing its decisions, lessening its de facto power.
And then there is the Congress — the least popular, least respected, and most disorganized branch of the federal government. This is the branch which has the least ability to capitalize on a cult of personality given its lack of any single established figurehead. Moreover, turnover in Congress is higher than most people think. Although some members of Congress serve for decades, most members have tenures that are much shorter. The average tenure for current members is 8.6 years in the House and 10.1 years in the Senate.This means many members of Congress come and go as quickly as the presidents.
But if we’ve determined which federal institutions are the worst, the question remains: so what?
Well, this sort of analysis may help us determine which side is the greater threat when observing conflicts within the federal government. It also helps us to see through the rhetoric of political parties who always insist attempts at limiting their guy’s power is unconstitutional or inappropriate.
One example of this was Nancy Pelosi’s diplomatic trip to Syria in 2007, during which the Speaker attempted to assert some Congressional control over the White House’s foreign policy. Vice president Dick Cheney denounced the move, insisting “we don’t need 535 secretaries of state” and claiming Congress should defer to the president on all matters of foreign policy. Cheney, of course, was wrong, and it would be a good thing if Congress spent quite a bit more time “meddling” in the White House’s foreign policy agenda. The proper view of this relationship between Congress and the White House, however, is often clouded by partisan loyalties.
On the other hand, during the Trump administration, we’ve seen the permanent bureaucracy assert itself in its attempts to undermine the presidency, and to protect the deep state’s own interests. The House majority has been supportive of this for partisan reasons. But more fundamentally — as a recent New York Times article concludes — this has really been a conflict between the presidency and the deep state. Although the presidency’s power is already bloated to dangerous levels, the power of the permanent administrative state is even greater, more unaccountable, and most dangerous of all.
Mere partisan analysis would impel us to overlook this, but by keeping an eye on the relative danger of each branch within the federal government, we may perhaps be more able to identify the worst of the bad guys in each new political controversy.