Bureaucrats and ballots: We need both

We are all familiar with the constitutional provision for three coequal branches of government. But over 250 years of population growth and dynamic economic change, the country faced new challenges requiring government action. Congress responded with new legislation which created new executive and administrative agencies to address the nation’s problems. As society was becoming more complex, the need for highly qualified personnel in the federal government has increased leading to the creation of a professionalized, merit-based, civil service led by non-elected civil servants. Now sometimes referred to as the “administrative state,” or more pejoratively (especially with regard to agencies responsible for national security) as “the deep state,” the “federal bureaucracy” had been a much less publicly discussed part of government.

But questions of who controls civil servants and what are the reaches of their power are taking new prominence as a result the work of conservative legal circles and a domestic politics which finds political gain in attacking the “administrative state.”

For most of us, “Chevron” is an oil company. But, in the 1984 decision, “Chevron v. National Resource Defense Council,” the court established what is now known as the “Chevron deference” by which the court defers to the expertise of administrative agencies when technical issues figure prominently in litigation involving the government. But, recently, the court agreed to hear a case about alleged government overreach involving the enforcement of fishing regulations (“Loper Bright Enterprises v. Raimondo and Relentless, et.al. v. Department of Commerce, et al.”) which has important implications for the future of the “Chevron deference.”

Depending on how this new case is decided, we could see a significant reduction in administrative discretionary power. According to the anti-Chevron position, policymaking should be returned to elected members of Congress, with delegation reduced and replaced by far more detailed legislation describing what the administrative agencies should do.

The question of the authority of the administrative state has also bedeviled modern presidents as they try to ensure that administrative rulemaking comports with the presidents’ political priorities. Following presidential elections new presidents appoint some four thousand “political appointees” (non-civil service) to provide leadership for administrative agencies as they develop and enforce presidential policies and Congressional statutes. Career civil servants, having witnessed the comings and goings of new presidents and their political appointees, are familiar with these efforts at political control. Of particular importance are members of the “senior civil service,” officials with extensive government experience and institutional memories pertaining to their domains who often have their own views as to what is in the national interest. Former President Trump is not alone in being frustrated by a civil service that has not always been responsive to presidential directives. In his current campaign, he calls for a far more aggressive, if not draconian, approach to bringing government agencies to heel.

Should President Trump be reelected, and should Chevron deference be overturned, Americans would be faced with a much different government. The executive branch would be led by political loyalists intent on neutralizing the powers of senior civil servants. Congress would face new demands for writing legislation that would provide far more detailed instructions to the administrative agencies. That would require overcoming its present dysfunction and developing expertise that it currently does not have. And, from the perspective of the court, as noted by Justice Barrett, the judicial system could be faced with appeals of decades of established decisions made under the Chevron deference. These outcomes might be viewed as a boost for democracy — “ballots over bureaucrats” — checking the powers of unelected officials by reasserting the popular will expressed through elected representatives, But before reaching that conclusion, we should consider the role of the “administrative state” in a modern democratic system. On one hand, most agencies are created by Congress and are funded by congressional appropriations. This introduces an element of democratic accountability to Congress, at least in principle. The presidency is charged with seeing that laws are faithfully obeyed and implemented, tasks that cannot be effectuated without government administrative agencies. Through presidential “political” appointments, the agencies are accountable to the president, again, at least in principle. But, sometimes “democratic accountability” can go wrong in the face of irresponsibility and malfeasance of elected officials who face the exercise of “private power” from corporations, powerful interest groups, and wealthy individuals.

Committed leaders of the administrative state thus become a critical fourth ingredient in the U.S. checks and balances system.

There is little doubt that the administrative state possesses powers that elude some versions of “democratic” accountability. These power are sometimes abused as in inefficient and wasteful policy implementation by bureaucratic structures, and the distortion of presidential or congressional policies. These lend themselves to frustrations with “dumb” or “unaccountable” bureaucrats and “deep state” worries. And yet, how would American society function without an effective civil service? Could it? What happens when senior civil servants become disenchanted and leave government service as many have done in recent years? Is democratic governance thereby improved?

These are questions for American voters to decide, but it is important, first, for voters to understand the qualifications of civil servants and consider the roles they play in the governance of a 21st-century democracy. This is true with reference to the development and implementation of policies for difficult national challenges but also for their role in providing a longer range vision of the national interests. In light of the sometimes irresponsible and typically short term views of elected politicians, and the powerful interests outside of government who exercise enormous power over them, there is a need for a force to balance and moderate ill-advised policy initiatives. Democratic citizenry requires knowledgeable and nuanced understanding of “the bureaucracy” and its role in national well-being.

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Richard P. Suttmeier lives in Keene Valley.


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