It's Worse If It's True
When confronting questions about the handling of Benghazi by the State Department, the Justice Department-AP scandal, and the IRS-Tea Party scandal, President Obama has said repeatedly he only became aware of the problems through media reports. The most frightening part about all three of these scandals is that the President might be telling the truth about how he learned of them.
When an elected leader makes bad decisions, the nation has a problem that needs to be addressed, and we have constitutional means of addressing them. But, when a faceless, nameless, unaccountable bureaucracy moves beyond the control and oversight of a president, we have reached the point of crisis.
If we are to believe Obama, then not even the head of the executive branch can adequately keep the sprawling administrative branch under control. And this should concern us. Once the government is outside the control of the people, and outside the control of those who are accountable to the people, the nature of our government has changed.
Bureaucrats are unelected and oftentimes unaccountable to voters, the President, the judiciary, or Congress according to Vermont Yankee v NRDC (1978), Chevron v. NRDC (1984) and Arlington v. FCC (2012). If the nation’s administrative branch, or the fourth branch, were small and inconsequential this would not be much of a problem. Sadly, this is not the case.
The growth of the fourth branch has been well documented. At last count there are over 2.8 million nonmilitary federal workers. And these are not just bureaucrats who sit around doing nothing. In 2007 Congress passed 183 laws while the bureaucracy finalized nearly 3,000 regulations that carry the force of law. Conveniently enough, federal agencies conduct their own quasi-judicial decisions when someone is accused of violating one of its regulations. In fact, in an average year, there are over 900,000 administrative hearings.
Administrative agencies not only make the laws that govern us, they also judge whether or not we have broken their laws and have the authority to execute the laws. The power of the legislator, executive and judge is in the same hands when it comes to the fourth branch. Regardless of how powerful of a novel The Trial is, even Kafka could not capture the absurdity and bewilderment of the contemporary American bureaucracy.
Political philosophers like John Locke and Baron de Montesqueiu long ago saw the problem with placing the power of the executive, judiciary, and legislature all in the same hands. This is precisely why the Framers of our Constitution adopted their views and created three coequal branches of government. When all three government powers are placed into a single branch there is no practical recourse for the aggrieved citizen.
This is part of the reason why it makes very little sense to allow Attorney General Eric Holder to lead the investigation into the Justice Department which he heads. Also, as a matter of practicality, Locke pointed out, that men cannot be judges in their own cases for they are naturally biased toward themselves.
At this point, it is tough to tell what Obama's role was in each of these scandals, though in all likelihood, in at least one of them, he knew what was going on and encouraged it. In others he may have been complicit, while in others, negligent. But, if he really did not know what was going on, and he was not being negligent, then perhaps that is the worst of all the options.
If the bureaucracy has grown so large that our elected officials can't keep up with it, then we are at a breaking point. Even if tomorrow every elected official was replaced, there would still be the same bureaucrats promulgating and enforcing rules as there are today. The rise of the fourth branch has created a political climate in which accountability has been minimized. In a representative system of government, this is a crisis.