The Phaserl


The Fourth Branch of Government is Out of Control

by A. Barton Hinkle, Reason:

America has witnessed a massive shift in government authority, says George Washington University law professor Jonathan Turley—one that “has occurred without a national debate and certainly not a national vote.” That shift has led to the de facto creation of a “fourth branch of government containing legislative, executive and judicial components but relatively little direct public influence.”

Turley made those remarks in recent testimony before a House Judiciary subcommittee. His talk waded deeply into the weeds of legal history and precedent, but the upshot was this: By failing to rein in regulatory agencies when they overstep their bounds, the Supreme Court and Congress have allowed those agencies not merely to administer law, but to create it—and run roughshod over the public in the process.


It’s hard to argue with the numbers: In one recent year alone, Congress passed 138 laws—while federal agencies finalized 2,926 rules. Federal judges conduct about 95,000 trials a year, but federal agencies conduct nearly 1 million. Put all that together and you have a situation in which one branch of government, the executive, is arrogating to itself the powers of the other two.

All of this has happened thanks largely to a 1984 Supreme Court case called Chevron. The Reagan administration chose to relax some air-quality regulations, and the Natural Resources Defense Council challenged the decision in court. The Supreme Court sided with the Environmental Protection Agency. It did so for commendable reasons: to avoid turning the courts themselves into policy-making bodies. Rather than decide whether the EPA was right or wrong, the high court deferred to the agency. This is judicial modesty.

But modesty can go too far. Federal law (the Administrative Procedure Act) requires courts to “hold unlawful” agency actions that are arbitrary or capricious, that violate the Constitution, or that exceed their authority. Turley and others contend Chevron has tilted the scales too far. He says it is “the administrative equivalent of Marbury v. Madison”—except that, unlike Marbury, it has made executive agencies rather than the courts the final arbiter of their own behavior.

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