Constitution Check: Is the government too big for checks and balances?
Lyle Denniston looks at claims that a “fourth branch” of the government is putting a bureaucratic stranglehold on the other three branches, as well as state governments.
THE STATEMENT AT ISSUE:
“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 decreasing transparency. … The fourth branch now has a larger practical impact on the lives of citizens than all other branches combined.”
– Jonathan Turley, George Washington University law professor, in an article in The Washington Post on May 26, titled “The rise of the fourth branch of government.”
WE CHECKED THE CONSTITUTION, AND…
Americans have been fretting over the growth of the national government since at least the presidency of Abraham Lincoln, during the Civil War. And the fretting has been at the level of deep anxiety since the New Deal–era expansion under President Franklin D. Roosevelt. In the present day, the rise of an entirely new and sometimes powerful political movement—the tea party—can be traced directly to this continuing concern.
But to suggest that it has gotten out of control, that it has outgrown the functioning of a system of constitutional checks and balances, is to misunderstand the way that system works in the era of really big government. Not one of the three constitutionally defined branches in Washington is noticeably weaker than it was at some point in the past. And not one of them is bashful about monitoring, and at times frustrating, the “fourth branch”—the Cabinet departments and the regulatory agencies.
Having government power, and all of the official institutions in Washington have that, does not necessarily mean that its use will never have to be justified, or that its use will never be checked or even overwhelmed.
A few questions that are being asked and answered today illustrate the point:
How soon, after revelation of the Internal Revenue Service’s aggressive review of tea party organizations’ tax-exemption pleas, did investigations arise—in Congress, at the Justice Department, and at the IRS itself?
How confident can President Obama and his Cabinet be about putting into place all parts of the new federal health care law, when more than a handful of states are refusing to go along with key facets of it?
How much unchecked power does the president have to carry on his policy of “targeted killing” as part of the war against terrorism, when Congress, outside interest groups, and even the federal courts are asking probing questions about its extent and its justification?
How free is the president to make temporary appointments to federal agencies, as a way to get around Senate filibusters of some of his nominees, when the very power of appointment is sharply restricted by a federal court and is now being tested in the Supreme Court?
How content can a regulatory agency like the Environmental Protection Agency be that a massive program of regulating global warming will be allowed to go into effect without being challenged in a federal court?
How long will it be before the State Department’s handling of the terrorist attack on our diplomatic mission in Benghazi is no longer the subject of congressional inquiry?
The answers to some of these questions, of course, are that America’s polarized political system generates at least skepticism and sometimes even hostility to this or that government program or event. But that is not the complete answer.
If there is one common denominator in each of these questions, it is that a check or balance, theoretically available within the structure of government, gets energized in the practical world by some lawyer or some advocacy group. If America now operates in the shadow of a huge administrative state, that is matched by a nearly-as-large lobbying and advocacy community.
The civic gladiators who now make the system of checks and balances actually work are energetic; they have money and talent; and they have every incentive to keep an eye on what the national government does. And it may sometimes be forgotten, they have a constitutional right to do just that: the First Amendment guarantees them a “right to petition the government for a redress of grievances.”
And it is a simple fact of life that virtually everything the national government does, in virtually every field, is likely to be perceived in some quarter as a “grievance” that needs fixing—or, at least, needs to be challenged.
Professor Turley’s complaint about a “fourth branch of government” that governs “with increasing autonomy and decreasing transparency” is in a real sense a fanciful notion. It might be real, if there were no lawyers and no lobbyists and no advocacy organizations, and no media to pay attention to all of those who have gripes or agendas.
Concentrations of official power may, indeed, be a threat to a free society, but when there are private concentrations of civic power—dueling “factions,” in James Madison’s words—the threat probably is being kept pretty well under control. The Founders, perhaps, had more faith than some of their contemporary descendants do that the idea of checks and balances does work to forestall tyranny.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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