The Modern Administrative State in America: The Rise of Federal Centralization & the Decline of Federalism and the

Separation of Powers -Ethan Lazuk-

The essence of Marini's argument1 is that the ongoing expansion of the centralized administrative state has altered Federalism and the separation of powers between the executive and legislative branches of government dramatically. This trend started with President Lyndon Johnson's Great Society, a suite of legislative efforts that expanded federal administrative power at the expense of state and local governmental authorities. Since power was slowly drained from state and local governments and consolidated in the increasingly centralized federal government, this new national administrative state compromised Federalism by destroying the equitable balance of local, state, and national powers. And because this new conglomeration of powers in the administrative state was not constitutionally intended, there is little precedent to determine the proper spheres of executive and legislative responsibility regarding the expanded powers. Competition between the President and Congress over the new types of authority available in today's administrative state have furthermore led to an undermining of the separation of powers between these two federal branches of government. The centralization of administrative authority within the federal government 3at the expense of state and local governments has thus trampled the Constitution with the destruction of Federalism and undermining of the separation of powers. Marini mentions the Progressive movement led by men like Woodrow Wilson. Progressive goals consisted of enhancing federal administrative powers, and most progressives disliked the Constitution precisely because it prohibited such powers. But in the centralized

1This essay is an overview and response to a provocative speech delivered in 2014 by University of Nevada Political Scientist John Marini.

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administrative state that has been growing unabated since the 1970's, the Constitution's separation of powers has become rather inconsequential. "It has become difficult to assess, let alone defend, the various uses of the powers of government," Marini explains, referring to the blending of (primarily) legislative and executive spheres on an expanded playing field of administrative authority. The result is that citizens are left "to judge the politics of the administrative state in terms of a defense of Congress, the presidency, or the Supreme Court, based primarily on the policy preferences of the observer" (page 5). Progressives saw the rise of an administrative state as the end to partisanship and, really, politics altogether. In their view, men and women would no longer have to rely on petty policy arguments since all decision-making, because it was administrative and not political, would defer to a domain of "neutral and highly trained experts" (page 3). Marini clearly sees a different outcome where a person's partisan identity is the foundation for all judgments regarding the behavior of his or her political representatives. Moving back to the origins of American Federalism and the separation of powers, Marini finds how the way the Founders had intended the federal government to work is essentially the reverse of how the administrative state functions. Each branch of the federal government, as the Founders had intended it, was supposed to act on behalf of the public good as a universal entity encapsulating every civilian interest, but it was meant to work for the public good using only the enumerated constitutional authorities assigned to it. In the minds of the Founders, as interpreted by Marini, each branch vying for the same outcome, the public good, but using different types of authority, divided firmly by constitutional mandates, was the definition of good governance and the way to manifest the greatest version of the public good. But the federal government does not behave this way. In fact, since the advent of the centralized administrative state roughly five decades ago today, Congress, the occupant of Article I and thus the pinnacle branch according to serial placement in the Constitution, has abandoned lawmaking as its main emphasis in exchange for newfound

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powers of administrative oversight. "As a result, the political and legal standard by which judge to Congress was no longer its Constitutional power, but rather its fundamental role in organizing and consolidating the administrative state" (page 6). And by finding its prime source of contemporary relevance in administrative rather than legislative responsibilities, Congress has joined with the executive branch in what Marini sees as an abject abandonment of the Constitution as a whole. The Founders had donated their blood and that of their peers to the fight against monarchical impositions of law and order, and in constructing a republican form of government for an incipient American nation, the preservation of liberty was heavy upon their minds. But no branch of government was intended to defend liberty independently. Rather, the three interconnected branches of the federal government were the bedrock of liberty, but the castle walls of that protective institution, dilapidated though still strong for two centuries, have since crumbled under the storm of the administrative state. Congress is less a unified national entity than a parochial body of local representatives with narrow interests. With the centralization of the administrative state, Congress found a new way to balance executive power. Instead of legislating on behalf of national interests, Congress focused on creating entities to perform oversight on executive actions while management of these entities fell to particular committees within Congress that possessed relevant subject-matter expertise. The balance of legislative and executive authority, the so-called checks and balances of a republican government, still exist in the administrative state, but the relationship between the branches has flip-flopped. The constitutional prerogative of Congress is to formulate new legislation, which the president then administers. But in the administrative state, it is the executive branch that takes the proactive approach to governance while Congress administers or gives oversight. There is still another aspect that has changed regarding Federalism and the consolidation of state and local authority by national bureaucratic organs. And so with less state and local power, Congress has turned its attention to local administration, as well. A legislative body of close to

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500 members has an easier time dividing the attentions of its members to their constituents' interests than forcing collaboration on topics of nationwide concern. Local administration is also a gateway to increased recognition and support from eligible voters, which is never a bad thing to a popularly elected government representative. An added benefit of this arrangement is that whatever Congress has managed to bring under its administrative umbrella is essentially off-limits to the President's administrative apparatuses. Through its parochialism, therefore, Congress establishes its nationwide influence. But the disjointed character of today's congressional membership must not be glazed over by the appearance of Congress as a counterweight to the executive branch. For as Marini points out, Congress is far less a collective organ of governance than it is a collection of localized actors and myopic committees concealed behind the fragile shell of an institutional legacy that, like the view of a star from earth, loses its luster and life the closer one views it. Nor is the judicial branch immune from the reconfigurations imposed by the administrative state. Intended to be the detached and objective decider of the constitutionality of legislation, the courts have since taken on some of the legislative duties that Congress has abandoned for administrative oversight. "The courts have been required to enter the policy-making arena, as the final arbiters in the adjudication of cases arising in the administrative process." Marini continues, "As a result, they have become fundamental players in the political and policy making process" (page 12). Congress does occasionally legislate, though "it does so primarily on behalf of the expansion of the administrative state" (page 13). A prominent recent example is the Patient Protection and Affordable Care Act, which President Barack Obama promoted and Congress passed in 2010. To call the 2,500-page document, affectionately known as ObamaCare, legislation is not so much to misspeak as to adopt the parlance of the modern administrative state. Within ObamaCare is primarily a set of laws, mandates, and instructions that empower healthcare-related administrative entities to implement the reforms. Like so many other

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pieces of contemporary "legislation," ObamaCare is a guidebook for administration. There is even a bit of political partisanship within the bureaucracy that comprises the administrative state. Marini attributes the birth of federal centralization to President Lyndon Johnson and some of its early framework to President Franklin D. Roosevelt, both Democratic Party members. Seeing as the administrative state was born out of Democrats' aspirations, it makes sense that their party is viewed internally throughout the bureaucratic organs of the administrative as their defender. Congressional or executive administrative capacity, therefore, is related to the partisan relationship between the political party that leads the particular branch of government and the administrative apparatuses that enact its wishes. It follows therefore that the inherent partisan biases of particular bureaucratic entities will show greater cooperation when dealing with a proponent (in the executive) or proponents (in the Congress) of its purpose. Marini is by no means a proponent of the administrative state. His fundamental argument is that the centralization of the federal government has trampled the Constitution and the intentions of the Founding Fathers by destroying Federalism and undermining the separation of powers. The transfer of state and local government authorities to the federal government has emboldened Congress as a parochial enactor of administrative oversight, contrary to its intended purpose as a legislature, defined as a creator of laws. Meanwhile, all three branches of the federal government, the legislative, executive, and judicial, have in some ways each overstepped their enumerated constitutional powers to scoop up new administrative powers that are dropping all around them with growing intensity. If the Founders sought to preserve liberty by creating three distinct branches of government all vying for the public good, today's administrative state represents a new epoch of bureaucratic tyranny, where the respective roles of federal branches bleed together like wet paint on a tilted canvass, or so thinks Marini.

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Sources John Marini. "Budgets, Separation of Powers, and the Rise of the

Administrative State (Unpublished Rough Draft)." Presented at Annual Meeting of the American Political Science Association. August 28, 2014.