The following is adapted from a speech delivered on September 26, 2013, at Hillsdale College’s Kirby Center in Washington, D.C., sponsored by the AWC Family Foundation Lecture Series.
While it is true that both the executive and the legislative branches have contributed to the expansion of the administrative state, it is equally true, and worth repeating, that there has been no consensus or political realignment that has succeeded in legitimating the administrative state as a replacement for the Constitution. As a result, that unlimited state still rests uneasily within a constitutional structure of limited government whose political branches were intended to act on behalf of constitutional purposes. Why then has it proven so difficult to reverse the growth of the administrative state?
The political transformation of Congress that occurred in the decade following 1965 was the decisive event in this regard. That transformation has been so complete that it is difficult for us to remember today how Congress used to work, and what were the expectations concerning its role, prior to that period.
Before 1965, when the presidency seemed to dominate the political landscape, conservatives were the great defenders of Congress. In 1959, conservative political scientist James Burnham, in his book Congress and the American Tradition, wrote that “the political death of Congress would mean plebiscitary despotism for the United States in place of constitutional government, and thus the end of political liberty.” Burnham attributed the decline of the legislative body to the fact that “Congress has let major policy decisions go by default to the unchecked will of the executive and the bureaucracy.” In order to retain its status of first among equals, he insisted, “Congress must find a way to concentrate on essentials. . . . [I]ts principal energies must go to deciding major issues of policy, not to the critique of details.” In making this argument, Burnham assumed that the legislative bodies of Congress—the House of Representatives and the Senate—“by their very nature, cannot be bureaucratized in the modern mode.”
More than 50 years later, Burnham’s worry that Congress would decline into obsolescence is barely comprehensible, because Congress, when it is united, seems to have more than ample power to defend itself against the other branches. But its resurgence of power has not come at the expense of the administrative state, or what Burnham called the bureaucratic welfare state. Rather Congress has become an integral part of that state.
In hindsight, Burnham was wrong to assume that legislative assemblies cannot be “bureaucratized in the modern mode.” It is true that constitutional assemblies cannot be bureaucratized, because deliberation and general lawmaking remain their fundamental political purpose. What Burnham did not foresee is that Congress could surrender its lawmaking power, delegating that power to the bureaucracy, and still maintain its authority over the bureaucracy. It is in this way—by reorganizing itself to be not a legislative, but an administrative oversight body—that Congress established itself as a major player in the politics of the administrative state.
In the course of this reorganization, individual congressional committees and members were empowered to oversee the various departments and agencies of the executive branch, making Congress—in the words of political scientist Morris Fiorina in 1977—the “keystone of the Washington establishment.” Under the Constitution, the separation of powers and the politics of federalism had inhibited Washington from achieving such centralization of power. Progressive intellectuals had criticized the Constitution and advanced the doctrine of the administrative state, and the New Deal had attempted to put Progressive theory into practice. But the administrative state was not institutionalized within the framework of American politics until Congress reorganized itself in the late 1960s and early ’70s, fundamentally altering the separation of powers and the federal system.
Many in Congress at the time objected to the transformation. Congressman Gillis Long put it this way: “We [congressmen] were turning ours from an institution that was supposed to be a broad policymaking institution with respect to the problems of the country and its relationship to the world, into merely a city council that overlooks the running of the store every day.” But such objections were ineffectual and shortlived. Members of Congress soon came to prefer administration and regulation to deliberation and legislation. “The smartest thing we ever did,” said Representative Jamie Whitten, “was to throw the weight of the federal government behind local problems.”
Once the characteristic activity of the federal government became the regulation or administration of the details of the social, political, and economic life of the nation, organized special interests and their ties to the legislature and the bureaucracies were strengthened. In the words of James Sundquist, a sympathetic observer of Congress,
As members become managers of professional staffs, the chambers disintegrate as “deliberative bodies” in the traditional sense of legislators engaged in direct interchange of views leading to a group decision. . . . With each passing year, the House and Senate appear less as collective institutions and more as collections of institutions—individual member-staff groups organized as offices and subcommittees.
Moreover, political parties were diminished in importance, because bureaucratic patronage would become more important than party patronage. The function of the judiciary was transformed as well: In the administrative state, the bureaucracy has no constitutional authority, but it is given enormous power by the political branches. Consequently, the courts have been required to enter the policymaking arena, as the final arbiters in the adjudication of cases arising in the administrative process.