The Fourth Branch of Government

Over two centuries ago, James Madison, writing in The Federalist No. 47, recognized the danger of an unchecked administrative state. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” he wrote, “whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” And now, step by incremental step, the “fourth branch of government” is making Madison’s fears into reality, abetted by the other constitutional branches of government.

Administrative agencies (such as the IRS, EPA, SEC, and numerous other members of the “alphabet soup”) are nominally housed within the executive branch of government, delegated authority by the president to enforce the law within their respective fields. No clause of the Constitution allows for a delegation of authority to this degree, or addresses the fact that many federal agencies venture far outside their original jurisdictions in their prosecution of ordinary citizens.

The legislature, meanwhile, often leaves holes in the bills it passes, purposeful absences of detail that the administrative agencies often fill with rules and regulations of their own design. If this is not lawmaking or legislating, what is?

And the judiciary? It has willfully abandoned its duty to enforce the Constitution and the strict letter of the law, primarily by refusing to even interfere in the daily happenings in executive-branch agencies except in extreme circumstances. Often the courts, including the Supreme Court, merely decline to hear certain types of cases, other times, they actively defend the right of agencies to follow their own rules and hold their own hearings against those they have accused of violating federal regulations, without possibility of judicial appeal. The Supreme Court even ruled in the case of Chevron v. Natural Resources Defense Council (1984) that “courts should defer to agency interpretations of such statutes unless they are unreasonable.”

It takes little imagination to realize what James Madison and the other Founders would have made of that particular argument, or the entire sorry state of federal administrative law.

Congress should do more to fix this normalization of administrative tyranny, and indeed has been doing more. Current law provides Congress with the ability to repeal recent regulations, a power it has been exerting heavily as of late. The REINS Act, which would expressly forbid future major regulations unless first approved by Congress, has also been steadily progressing through the legislature. And it may be possible for the Chevron doctrine, as it is known, to be effectively repealed by law without need for further judicial intervention.

But the final way to halt and reverse the growth of the fourth branch of government will require the three constitutional branches to work together. The President must nominate, and the Senate must confirm, dedicated originalist judges who will be unapologetic in fighting “independent agencies” whenever such a case does arise. Railing against the administrative state is not sexy. It will put many voters to sleep, not rouse them to action. But in the long term, increasingly powerful and unaccountable agencies run by faceless bureaucrats are just as much of a threat to the Republic as the latest Trump “Muslim ban” or Supreme Court attempt to mandate legalized gay marriage.