President Obama famously said, “We’re not just going to be waiting for legislation to make sure that we’re providing Americans the kind of help they need. I’ve got a pen, and I’ve got a phone.” Repeatedly, the former president argued in favor of unilateral action. Forward to 2018 and President Trump has, in many ways, echoed these sentiments.
The growth of the administrative state has prompted debate about the constitutional duties delegated to the branches of government. Congressional oversight authority derives from the implied powers and from various express powers in the Constitution. However, Congress must reinstate their constitutional authority and hold executive branch agencies accountable. Conservative and libertarian-leaning members of the Congress work to reign in excessive government bureaucracy.
Senator Ben Sasse eloquently discussed this point during the Supreme Court confirmation hearings for Judge Brett Kavanaugh. “The legislative branch is supposed to be the center of politics. Why isn’t it? For the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it. The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So they punt most of the work to the next branch.” Senator Sasse continues to scold Congress, “We write giant pieces of legislation that people haven’t read, filled with terms that are undefined, and we say the secretary or administrator of such-and-such shall promulgate rules that do the rest of our jobs.”
The growth of administrative agencies has, in many ways, been a boon to the executive branch’s powers, while siphoning such power and oversight from the legislative branch. A former President was asked to bypass Congressional action and to act on executive fiat. The request shocked the President. However, given Congress’ incentive to seek re-election rather than act on challenging issues it is less shocking. Senator Sasse wrote at The Wall Street Journal, “but the real reason this institution punts most of its power to executive-agencies is because it is a convenient way to avoid responsibility for controversial and unpopular decision. If your biggest long-term priority is your own re-election, then giving away your power is a pretty good strategy.”
A 2014 Vox article focuses on the Executive Branch’s increasing activism within the agencies. Article II of the United States Constitution delegates the duty to the President to “take Care that the Laws be faithfully executed.” There have been extensive legal debates surrounding executive discretion and the flexibility granted by the Founders. William Howell, a political scientist at the University of Chicago said, “There are some ways here in which Obama has made kind of unique contributions, and really extended his executive authority in ways his predecessors haven’t done.” These debates will continue, but it is crucial that observers continue to monitor abuses of power.
Conservatives have described the administrative state as “The Deep State.” Their thinking is that political actors embed themselves in permanent roles within the agencies and then act on their ideological leanings rather than implement executive orders. The term “Deep State” makes sense if one has a natural skepticism of power; however, this only makes sense if that skepticism endures. Republicans often accuse the Environmental Protection Agency or the Bureau of Consumer Financial Protection (formerly the CFPB) of abusive behavior. Democrats have historically accused the Federal Bureau of Investigation or the Central Intelligence Agency of such behavior. These agencies continue to grow despite public concerns.
A recent opinion piece, authored anonymously by “a senior official in the Trump administration,” at The New York Times solidifies the notion that a massive government bureaucracy is undermining the will of the people. The author acknowledges this aura of a shadow government, referring to it as “the steady state.” The official continues, “Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th amendment, which would start a complex process for removing the president. So we will do what we can to steer the administration in the right direction until-one way or another-it’s over.” The author finishes the article by acknowledging the quiet resistance within the administration, and calls for everyday citizens to rise above politics.
Media coverage of President Trump’s administration has prompted a renewed national interest in politics and law. Eric Liu at The Atlantic writes, “Americans today are rushing to make up for decades of atrophy and neglect in civic education and engagement. But as they do so it’s important to remember that citizenship is about more than know-how. It’s also about ‘know-why’- the moral purposes of self-government.” For years, both political parties have portrayed their opposition as violating standards and norms; yet, each uses similar practices once in power.
In a politically polarized climate, every government action has become weaponized. Throughout the Obama administration, there were several examples of agencies using their resources to target opponents. Examples include the IRS’ targeting conservative groups and the Department of Justice targeting journalists. Thus far, the Trump administration has instructed its agencies to dismantle specific Obama-era regulations and to target leakers of confidential information. Congress must agree on reform packages to restore trust in the administrative process. The American public must pressure politicians to hold bureaucrats accountable when there are blatant abuses of power, not only for “arbitrary and capricious” actions.
Legislative failures continue to accumulate under the Trump administration. Earlier this year, the Trump Administration began the “zero-tolerance policy” on illegal immigration enforcement through the Department of Justice. This policy was widely condemned as immoral. However, in the case of the “zero-tolerance policy” the elected officials once again failed the American people. Rather than discuss a truly bipartisan approach to immigration reform, the Congressional leadership relied on executive fiat with the President issuing an executive order to end the practice of enforcing the “Flores Consent Decree,” the law governing families in detention centers.
Following President Trump’s reversal of the “zero-tolerance policy,” the Administration requested for a federal judge to intervene and prevent family separation. Los Angeles-based U.S. District Court Judge Dolly Gee dismissed their request. “It is apparent that Defendants’ Application is a cynical attempt…to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate.” Even the Justice Department spokesperson stressed the notion that this request was in no way an alternative to lawmakers legislating on the matter. “Irrespective of the Court’s decision in Flores, it is incumbent for Congress to finally act to keep families together, end catch-and-release, and create the foundation for an immigration system that serves the national interest.” Congress’ unwillingness to address crucial issues will continue to fuel crises, as the Executive Branch seeks to remediate problems by extending executive authority.
The problem will persist unless the American people require more active governance from Congress. Progress will be slow, but there are signs of a growing hunger for Congress’ reinstatement of oversight of the agencies. Republican Representative Devin Nunes said, “And we need real penalties for those who violate the rules.” His investigation illuminated “the flaws in the powers of oversight, which Congress need to reinstate for itself.” Republican Senator Ben Sasse said, “we badly need to restore the proper duties and balance of power to our constitutional system.” There is hope for those seeking to reform the administrative agencies, but it may only come as a result of the slow disintegration of bipartisanship. The American people must call on their elected representatives to preserve, protect, and defend the Constitution of the United States of America.
Mitchell Nemeth holds a Master in the Study of Law from the University of Georgia School of Law. His work has been featured at The Arch Conservative, Merion West, and The Red & Black.