Bureaucracy: The Constitution's Missing Piece

The US Constitution gives Congress the power to establish federal government offices and delegate authority to the bureaucracy. This delegation of power has been a contentious issue since the early history of the US, as it raises questions about the separation of powers. The Constitution vests legislative power in Congress, and the Supreme Court has observed that the Necessary and Proper Clause authorizes Congress to establish federal offices. However, the Court has also recognized limits on Congress's ability to control the actions of officers once appointed. The issue of bureaucracy in the US has evolved over time, with the country's first 150 years seeing little to no concept of a bureaucracy. The growth of federal bureaucracy in the 19th century and the increasing delegation of power from Congress have led to debates about the disruption of the separation of powers and the potential for undesirable power accumulation in bureaucratic hands.

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Separation of powers

The US Constitution establishes three separate but equal branches of government: the legislative branch, the executive branch, and the judicial branch. This separation of powers is a fundamental way of ensuring that the government balances power so that no one part becomes too powerful.

The legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law. Each branch has its own authority, but also depends on the authority of the other branches for the government to function. This is known as a system of checks and balances.

The Framers of the Constitution sought to ensure that a separate and independent branch of the Federal Government would exercise each of the three basic functions of government. They were influenced by political theorist Baron Charles de Montesquieu, who wrote about the separation of powers almost 100 years before the US Constitution was drafted. The Framers also wanted to maintain some independence for each branch while promoting a workable government through the interdependence and sharing of power among the branches.

To address concerns that one branch would aggrandize its power by attempting to exercise the powers assigned to another branch, the Framers incorporated various checks. For example, the Constitution allows the President to veto legislation, but requires the President to gain the Senate's consent to appoint executive officers and judges or enter into treaties. The Supreme Court has also raised concerns about the judiciary encroaching on the legislative or executive spheres.

Federal bureaucracy

The US Constitution gives Congress substantial power to establish federal government offices. The Constitution vests legislative power in Congress, which is supplemented by the Necessary and Proper Clause. This clause provides Congress with broad power to enact laws that are 'convenient, or useful' or 'conducive' to the beneficial exercise of its more specific authorities.

Congress's authority to establish offices is limited by the terms of the Appointments Clause. The structure of federal agencies must comply with the requirement that the President appoint officers, subject to Senate confirmation. The appointment of inferior officers may rest with the President alone, department heads, or the courts. The Supreme Court has made clear that the Constitution imposes important limits on Congress's ability to influence or control the actions of officers once they are appointed.

The size and scope of the federal bureaucracy have been a topic of debate and subject to changes by various administrations. For example, the Trump administration proposed a shake-up of the State Department, targeting human rights programs and offices focused on war crimes and democracy. The plan aimed to reduce staff by 15%, with the goal of cutting costs and downsizing the federal government.

In contrast, other administrations may seek to expand the federal bureaucracy to address specific issues or fulfill campaign promises. The federal bureaucracy encompasses a wide range of agencies and departments, each with its own mandate and responsibilities. While the Constitution gives Congress the power to create these offices, it is up to the President and their administration to staff and manage these agencies, subject to certain checks and balances built into the system.

Legislative power

The US Constitution gives Congress substantial power to establish federal government offices. Article I of the Constitution vests the legislative power in Congress, which consists of a Senate and a House of Representatives. The House of Representatives is composed of members chosen every second year by the people of the states.

The legislative powers of Congress include the establishment of offices, the determination of their functions and jurisdiction, and the prescribing of qualifications and rules of eligibility for appointees. Congress may also determine the term and compensation for appointees. The Necessary and Proper Clause provides Congress with broad power to enact laws that are 'convenient, useful, or conducive' to the exercise of its authorities. This includes the power to lay and collect taxes, duties, imposts, and excises; to regulate commerce; to establish uniform rules of naturalization and bankruptcy laws; to secure intellectual property rights; to define and punish certain crimes; to declare war; and to raise and support armies.

The nondelegation doctrine, based on the separation of powers and due process principles, prevents the legislative branch from transferring its lawmaking power to the executive or judicial branches. However, the Supreme Court has recognized that Congress may delegate powers that it "may rightfully exercise itself". This includes delegating authority to the President or other officers to suspend or rescind a law, as well as delegating rule-making authority to the Supreme Court.

The establishment of federal offices by Congress is limited by the Appointments Clause, which requires the President to appoint officers with the advice and consent of the Senate. The President must retain independent discretion in selecting officers, and the Supreme Court has limited Congress's ability to influence appointed officers' actions.

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Administrative apparatus

The US Constitution gives Congress the power to establish federal government offices and delegate authority to the bureaucracy. However, the Constitution does not detail the nature or function of the executive branch of the government. The Founding Fathers also had little to say about the nature or function of the executive branch.

The Constitution vests legislative power in Congress, and the Court has recognised that these powers are supplemented by the Necessary and Proper Clause, which authorises Congress to create federal offices. This clause provides Congress with broad power to enact laws that are "convenient, or useful" or "conducive" to the beneficial exercise of its more specific authorities. Congress's authority to establish offices is limited by the terms of the Appointments Clause, which requires the President to appoint officers, subject to Senate confirmation.

The issue of delegation of power from Congress to the bureaucracy has been contentious since the early history of the US. John Locke, in his Second Treatise, stated that "a delegated power cannot itself be delegated", an idea known as the rule of nondelegation. This raises the question of whether Congress can delegate legislative power, delegated by the Constitution, to the federal bureaucracy. The Supreme Court first addressed this issue in 1825 in the case of Wayman v. United States. Many scholars believe that the Court's decisions represented aberrations motivated by anti-New Deal justices.

The federal bureaucracy is now vested with quasi-legislative power, with federal agencies becoming policy-making entities. This formalisation of power was recognised with the passage of the Administrative Procedure Act of 1946. The growth of an administrative apparatus can lead to undesirable power in bureaucratic hands, including immunity from popular control, private control of governmental bureaucracy, and discretionary authority that is not responsive to the public good.

Presidential control

The US Constitution gives Congress the power to establish federal government offices and appoint their heads, subject to Senate confirmation. However, the President also has significant control over the bureaucracy. They can exert influence through the appointment of political executives who share their views and by requiring the Office of Management and Budget (OMB) to review agency rules before they go into effect. This regulatory review is the most important extension of the president's administrative authority and allows the White House to focus its limited resources on agency initiatives that are problematic.

The President's control over the bureaucracy is primarily reactive, as they lack the organizational capacity to monitor and influence all agencies. Their influence is selective and based on the practice of regulatory review. The OMB's Office of Information and Regulatory Affairs (OIRA) has been responsible for regulatory review since the Reagan presidency. While the White House occasionally advances its policy agenda through the bureaucracy in a proactive way, these efforts are less significant compared to its reactive involvement.

The President's oversight of the bureaucracy is also exercised through the appointment of the heads of cabinet departments and independent executive agencies, such as the CIA, EPA, and FBI. These appointments are subject to Senate confirmation. The OMB plays a crucial role in overseeing the bureaucracy by producing the president's annual budget and reporting on the actions of executive departments and agencies.

The Supreme Court has clarified that the Constitution imposes limits on Congress's ability to influence or control officers once they are appointed, ensuring the President's independent discretion in selecting officers. This allows the President to fulfill their constitutional duty to ensure the faithful execution of laws.

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