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Fixing the Most Dangerous Branch
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If President-elect Donald Trump and the Republican majorities in both houses of Congress really want to “drain the swamp,” they are going to have to do more than repeal and replace Obama’s policies and exclude a few lobbyists from the seats of power. They are going to have to fix the underlying problems in the structure of American government that got us into the mess in the first place. President Trump should propose, and the Congress should enact, a new law to impose term limits on senior administrative agency officials and make them subject to a periodic retention vote by the Congress.

Senator Ben Sasse put his finger on the key issue during a brilliant speech to the Federalist Society in Washington last Friday (November 18). Senator Sasse recounted a conversation with one of his constituents, whom he described only as a “Marlboro man.” The Marlboro man complained about a recent federal agency edict defining a small drainage ditch as “waters of the United States” so that even the owner of the property risks going to jail for disturbing it without federal permission. “For the life of me,” the Marlboro man remonstrated, “I can’t remember voting for anybody at the EPA.”

Senator Sasse went on to observe that federal judges are subject to approval by the people’s representatives only once in their careers, but federal bureaucrats not even once. Is it any wonder then that the federal bureaucracy is so out of touch with the people? Legal scholars refer to this as a “democracy deficit”: most of our law today is made by officials in the agencies and the courts who are not responsible to the people and often do not reflect their common sense. Call this the “three smart guys in a room” problem: a small group of self-appointed agency experts get together and come up with a rule that sounds good to them in the abstract and then (some times after notice and comment and judicial review), the rest of us have to live under it unless Congress disproves it and the President does not veto the Congressional disapproval of a rule enacted by his own Administration. That’s a weak check on agency rulemaking that has been used successfully only once.

Several solutions to the fundamental problem that agencies are not politically responsible to the people have been tried and failed. The last seven Presidential administrations have tried to ride herd on the agencies by beefing up White House review through the Office of Management and Budget (OMB) of “major rules” costing more than $100 million. That has helped to some degree but agencies have learned how to avoid OMB review including by issuing interpretations or guidance documents that do not go through OMB review or coming up with wildly inflated estimate of the benefits of their rules.

The other classic strategy that is often proposed in the academic literature is to somehow force Congress to make more of the law itself. In a 1981 article, the late Justice Scalia, then a professor, proposed taking away the power of agencies to make legislative rules, but he admitted this would radically contract the size and power of the federal government (which at the time, he thought was a good thing).

Another perennially popular strategy in conservative academic writing is to “bring back the delegation doctrine,” a judge-made principle that would force Congress rather than agencies to make more policy decisions. Whatever appeal this approach may have in theory, it isn’t going to happened in practice. The delegation doctrine “had only one good year,” 1937, as Harvard Law Professor Cass Sunstein has written When the Supreme Court had a chance to reinstate it in a 2001 case, Whitman v. American Trucking, a unanimous Supreme Court refused to do so in an opinion written by Justice Scalia.

We have to face the fact that in the modern world most of law at the retail level that governs us most of the time is going to be made by federal judges or federal bureaucrats, neither of whom are currently accountable to the people. We cannot fix that for federal judges without a constitutional amendment, and even if we could, undermining judicial independence would be undesirable for other reasons, as the experience of the states with elected judges shows.

But we can make senior federal bureaucrats who make most of the policy decisions in the federal government more responsible to the people’s representatives because their authority is conferred by statute, not the Constitution. Congress should enact term limits for members of the “Senior Executive Service” (SES) and make them subject to periodic retention votes by the Congress. SESers are the barons just below the temporary Presidential appointees confirmed by the Senate. Most SESers are valuable sources of wisdom and experience but unlike Presidential appointees, they currently served unlimited terms in office. Since 1978, the SES Reform Act has exempted this top level of career federal bureaucrats from some civil service protections and made them subject to merit pay and discretionary firing.

Today, however, the people’s representatives in Congress have no role in those decisions. They should. It would make the “three smart guys in a room” think twice before proposing stupid, dictatorial rules if they knew that periodically they had to come before the Congress and justify their performance in office to keep their jobs.

This is not bringing back the spoils system, under which presidents awarded federal jobs to their political supporters before Civil Service protections were enacted in 1883. There were only about 7,800 SES officials government-wide as of September 2014, out of a total of over 2.7 million federal government employees, 99.7% of whom would still as a practical matter have lifetime employment. The numbers of SESers are large enough that review of their performance in office would as a practical matter be conducted by the Congressional committees with relevant expertise. Assuming staggered 6-year SES terms, each of the 21 House Committees would only consider about 60 SESers a year, only a handful of whom are likely to be controversial enough that a majority would oppose their continuance in office. But to avoid a possible constitutional problem under the Supreme Court’s 1983 Chadha decision invalidating the legislative veto, retaining SESers in office at the end of their terms should be by majority vote of both houses, and subject to Presidential veto but not the filibuster.

The theoretician of the expansion of administrative agencies in the New Deal, James Landis, wrote that agencies would combine “politics and expertise.” It is time to readjust the balance between the two so that there are more democratic checks on the power of unelected bureaucrats in what is today’s most dangerous branch.

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