America's Bureaucracy is Unconstitutional - but We Allow it Anyways

Imagine a country in which a set of men and women, acting on behalf of their government, get to decide for themselves who is breaking the law and who is not. These men and women work for organizations that hold simultaneously the executive, legislative, and judicial powers of government. Furthermore, the "people" of this country (who are supposedly in charge of the entire operation), never delegated any such powers to these particular organizations. If you happen to be one of America's Founding Fathers, you could be forgiven for thinking that such a country represented the exact opposite of kind of place that the United States Constitution was meant to govern. In fact, the country is the United States of America, and the seemingly un-checked and un-balanced organizations described above comprise the massive American bureaucracy.

Despite the fact that the United States was meant to be ruled by laws rather than men (or women), with a system of government defined by a series of checks and balances, and ultimately run by the sovereign "people" of the country who govern indirectly by delegating powers to others, the American bureaucracy seems to operate in direct opposition to all of these principles. Fearing the tremendous growth in the size and scope of the bureaucracy in America throughout the 20^th century, some Americans hoped to limit or reverse this trend by mounting legal challenges to the Constitutional basis of the bureaucracy itself. However, in each of the three types of Constitutional challenges, the Court found a way to allow modern bureaucracy to stick around.

The first type of challenge to the Constitutionality of the bureaucracy involved the foundation principle that America was meant to be a nation ruled by laws rather than men. Without a standard and public set of laws, it was feared, any person could be charged with a crime simply because no one would know what was illegal and what was not. Under the best of circumstances, this would tend to cause confusion and legitimate claims of unfairness. At the worst, however, this might allow government officials to charge political opponents or other troublemakers, or even random people, with breaking "the law," and there would be no way to challenge their decision.

The challengers pointed out that although bureaucracies are certainly created by laws and act according to them, these laws are so vague that the bureaucracies themselves determine the specifics of what a given law means. Furthermore, even after a bureaucracy decides what the law means in practice by setting rules and regulations, individual bureaucrats often have tremendous discretion in applying them. Therefore, because it violated the principle of the "rule of law," the challengers argued that the entire system of bureaucracy was unconstitutional. The Court, however, determined that because the "rule of law" principle was primarily meant to address law enforcement, and since we allow law enforcement officials such as prosecutors and even police officers to exercise considerable discretion, the challenge was invalid.

The second type of Constitutional challenge to the bureaucracy dealt with the principle of the separation of powers. Because many bureaucracies exercise executive powers by enforcing rules, legislative powers by making rules, and judicial powers by interpreting rules, the challengers argued that the bureaucracy violated one of the most distinguishing features of America's governmental system. However, the Court determined that bureaucracy only engages in "quasi-judicial" and "quasi-legislative" functions, so its role in the executive branch was not any threat to the Constitutionality of the American system.

Finally, the third type of challenge to the bureaucracy maintained that while the Constitution delegates power from the "people" to the Congress and the President, it does not mention anything about allowing the re-delegation of power to yet another body. Especially because the bureaucracy has become primarily staffed by civil service members (who, as more-or-less permanent employees, have less reason to be responsive to the public than the original elected trustees of the "people's" power), the challengers argued that the President and Congress had no right to re-delegate the powers of governance in such a manner. According to the Court, however, because the Constitution created representative government rather than direct democracy, the argument was moot. The "people" cannot exercise the powers of governance themselves, so they must accept the practice of the government, even if that means the re-delegation of powers. However, the Court did note that for the re-delegation to stand, the President and Congress must provide instructions to the bureaucracy to ensure that the "people's" trust is not betrayed.

For the brave souls who did their best to challenge what they saw as the monstrosity that American bureaucracy had become, and even to the impartial observer, the nature and tone of the Court's decisions are analogous to the classic debate-winning technique know as "because I said so." Although the logic of this technique is not particularly impressive, it is fairly easy to understand why the Court responded as it did. Regardless of what the Constitution says, the American government has to function (although, considering its performance of late, maybe "quasi-function" would be a better word), and thus far, the bureaucracy is the only way we have figured out to help it do that. Until we come up with a better way, we will all have to live with the logic of "because I said so."