The Headless Fourth Branch

Someone once referred to administrative agencies as the headless fourth branch of government.  That was more of a joke than a criticism, since the head of federal agencies is the president and the head of every state agency is the governor.  Yet the joke gets at an annoying truth.  Sometimes these administrative agencies seem not to be accountable to anyone. They control a large part of the portion of life in which government interacts with the citizen.  They calculate and collect taxes, issue or deny licenses, determine public benefits, etc.   Hence the use of the word “bureaucrat” in the pejorative sense.  There is some low paid government functionary who has control over some aspect of my life.

In creating these agencies, the executive branch moved a large part of its work into a semi-autonomous body made up of careerists.  (A few agencies were required by the constitution, like the Dept. of War, but most were created as a result of the New Deal legislation or later statutes.)  Consequently, the traditional checks and balances are not as well suited to addressing abuse by an agency or a faction controlling an agency.

My concern is more with the agency itself than with individual employees of the administrative branch of government.  Agencies set policy.  The National Security Agency is a federal government agency.  It collects intelligence on law abiding citizens.   In the past, the Department of War, especially two attorneys within it,  played a key role in developing the plan to intern American citizens of Japanese descent, and it won a turf battle with the Department of Justice over which agency would address the question of how to deal with Japanese Americans.  According to the excellent book Justice at War by Peter Irons, if the Justice Department had the president’s ear instead of the Department of War, that terrible injustice might have been avoided altogether.   How do we the people respond to an agency setting policy we oppose?

The classic answer would be to elect a different president at the next opportunity or otherwise use political pressure on the executive branch.  Political pressure on the president did accomplish something with the NSA.  But that is a far off remedy.  People who do not oppose a policy very strongly would not likely cast a vote on that basis, and they may support the president for other reasons.  Agency actions are only widely known in rare instances.

Another possibility is to file a lawsuit.  Sadly, this has become a necessity in today’s world.  Private organizations exist for the sole reason of suing some government agency or the other.   Those organizations are usually well informed on what the agency is doing.  That is one form of political pressure.  Agency heads do not enjoy being sued.  It looks bad on them and the chief executive who appointed them. However, the monetary damages paid out by the government when it loses a lawsuit do not come from a printing press.  “We the people” pay the money.

Possibly, the legislature which authorized and funded the agency can hold oversight hearings.  This has happened recently with the State Department as a result of the killing of diplomatic personnel in Benghazi, Libya.  These oversight hearings are often viewed (correctly) as partisan in nature.  Again, they are at best a form of political pressure on the executive.

All of these play a role in reining in government agencies.  However, in my view the best way is for the civil servants who work in these agencies to act with a respect for the law in the first place.  In the example of the Japanese internment during WWII, Henry L. Stimson was Secretary of War. Karl Bendetsen and John McCloy were attorneys who worked in that agency.   Stimson was a senior figure in the government and FDR trusted his judgment.   Francis Biddle was the Attorney General.  Edward Ennis and James Rowe were attorneys who worked with him on this issue.  McCloy and Bendetsen were hawks who pushed hard for internment regardless of citizenship.  Ennis and Rowe were, by the standards of the time, civil libertarians, and they pushed back as hard as they could.  However, in the end FDR looked to Henry Stimson instead of Francis Biddle for advice.  He signed executive order 9066.

It is largely true to say that the actions of bureaucrats pushed FDR into this tragedy which stains his legacy.  Bedetsen and McCloy were intelligent men, but their agency biases had the better of them.  Stimson’s influence on FDR was decisive.   Lawsuits were filed against the internment but did not succeed.  Political pressure against it, in that highly charged wartime atmosphere, was almost non-existent.  But good advice from civil servants might have prevailed.

 

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