There were times in recent weeks when it seemed as though the
19th-century Know-Nothing Party had returned to Washington.
President Barack Obama insisted he knew nothing about major
decisions in the State Department, or the Justice Department or the
Internal Revenue Service. The heads of those agencies, in turn,
insisted they knew nothing about major decisions by their
subordinates. It was as if the government functioned by some hidden
Clearly, there was a degree of willful blindness in these claims.
However, the suggestion that someone, even the president, is in
control of today's government may be an illusion.
The growing dominance of the federal government over the states
has obscured more fundamental changes within the federal government
itself: It is not just bigger, it is dangerously off kilter. Our
carefully constructed system of checks and balances is being negated
by the rise of a fourth branch, an administrative state of sprawling
departments and agencies that govern with increasing autonomy and
For much of our nation's history, the federal government was
quite small. In 1790, it had just 1,000 nonmilitary workers. In
1962, there were 2,515,000. Today, we have 2,840,000 federal workers
in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.
This exponential growth has led to increasing power and
independence for agencies. The shift of authority has been
staggering. The fourth branch now has a larger practical impact on
the lives of citizens than all the other branches combined.
The rise of the fourth branch has been at the expense of
Congress's lawmaking authority. In fact, the vast majority of "laws"
governing the United States are not passed by Congress but are
issued as regulations, crafted largely by thousands of unnamed,
unreachable bureaucrats. One study found that in 2007, Congress
enacted 138 public laws, while federal agencies finalized 2,926
rules, including 61 major regulations.
This rulemaking comes with little accountability. It's often
impossible to know, absent a major scandal, whom to blame for rules
that are abusive or nonsensical.
Of course, agencies owe their creation and underlying legal
authority to Congress, and Congress holds the purse strings. But
Capitol Hill's relatively small staff is incapable of exerting
oversight on more than a small percentage of agency actions. And the
threat of cutting funds is a blunt instrument to control a massive
administrative state -- like running a locomotive with an on/off
Bureaucratic autonomy was magnified when the Supreme Court ruled
in 1984 that agencies are entitled to heavy deference in their
interpretations of laws. The court went even further last month,
ruling that agencies should get the same heavy deference in
determining their own jurisdictions -- a power that was previously
believed to rest with Congress. In his dissent in Arlington v. FCC,
Chief Justice John Roberts warned: "It would be a bit much to
describe the result as 'the very definition of tyranny,' but the
danger posed by the growing power of the administrative state cannot
The judiciary, too, has seen its authority diminished by the rise
of the fourth branch.
Under Article III of the Constitution, citizens facing charges
and fines are entitled to due process in our court system. As the
number of federal regulations increased, however, Congress decided
to relieve the judiciary of most regulatory cases and create
administrative courts tied to individual agencies. The result is
that a citizen is 10 times more likely to be tried by an agency than
by an actual court. In a given year, federal judges conduct roughly
95,000 adjudicatory proceedings, including trials, while federal
agencies complete more than 939,000.
These agency proceedings are often mockeries of due process, with
one-sided presumptions and procedural rules favoring the agency. And
agencies increasingly seem to chafe at being denied their judicial