Big government vastly expanded presidential power. Republicans use it to sabotage the administrative state.

Big government vastly expanded presidential power. Republicans use it to sabotage the administrative state.

By William Howell

 and 

Terry Moe

 

Yesterday at 5:00 a.m. EDT

Editor’s note: This article is part of a series on current challenges facing the federal bureaucracy from “Rethinking Our Democracy.” A joint initiative by the Center for Effective Government (@UChicagoCEG) at the University of Chicago and Protect Democracy (@protctdemocracy), “Rethinking our Democracy” produces written series on key areas of institutional and democratic reform. All other articles can be found here.

As Donald Trump’s term in office well demonstrated, presidential power has grown so dramatically during the modern era that any autocratically inclined president has the means to threaten democracy itself. How could this have happened to the oldest, best-established democratic government in the world? As our research shows, the answer has a lot to do with the rise of the administrative state.

The administrative state appeared long after the nation’s founding

For much of American history, government was skeletal and primitive. But by the late 1800s, as policymakers struggled to deal with the searing problems of modernity, progressive reformers sought to create a more effective government and an expert, professionalized bureaucracy capable of converting problem-solving policies into action. This bureaucracy was significantly expanded by the New Deal, the Great Society, and major regulatory programs of the 1970s, yielding a massive administrative state that by 1980 had grown to maturity.

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In 1920, just under 700,000 people worked in the federal bureaucracy. By 1980, that number was nearly 2.9 million. Over the same period, federal spending rose from $26 billion to $590 billion in 1980-adjusted dollars. These increases were not just the result of rising military expenditures. Spending on the Department of Interior increased 24-fold, Agriculture 86-fold, and Labor 759-fold. Given these resources, the administrative state transformed previously private domains of action and exchange into vast subjects of government oversight and intervention.

The administrative state augmented presidential power

These changes increased presidential power through two logics that operate at the same time. One is symmetric, with common effects across all presidents. The other is asymmetric, with different effects for Republicans and Democrats. Together, these logics have increased presidential power to levels that threaten democracy.

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The symmetric logic is straightforward. The administrative state has provided all presidents with countless opportunities for more power. This is partly because Congress and the courts both recognized that presidents were better positioned to manage and implement policy in a coherent way and granted them substantial discretion and deference to do that. The more potent reason, however, is that as all presidents want to establish legacies as great leaders, they seek power to do so — and the expanding administrative state provided them with a cornucopia of specialized agencies, new authority, trained personnel, positions for loyalists and bureaucratic means of shaping policy without Congress’s involvement.

Presidents have taken advantage of all this. They have built an institutional presidency within the executive office of the president that enhances their capacity to centralize policymaking and exert top-down control. They have politicized the bureaucracy through the appointment of loyalists. They have turned to unilateral action as a prime means of accomplishing many objectives. And they have asserted their legal right to exercise plenary authority over the administrative state and resist congressional “encroachments.” Big government has been a boon to presidential power.

But there is also a second logic at work. This one works asymmetrically for Democrats and Republicans, and it comes about because, except for the defense and national security agencies, the administrative state embodies Democratic commitments and values: the protection of workers, consumers and the environment, the regulation of business, aid to the poor and more. When Democrats look out upon the administrative state, they see allies performing vital government functions. When Republicans do so, they see enemies intruding on the private sector and threatening individual liberties.

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But what could Republicans do? Congress offers little opportunity to curtail the administrative state, as Democrats stand ready to defend it and Republicans lack the votes to overcome the numerous veto points that line the legislative process. The courts are ill-equipped and disinclined to shutter bureaucratic institutions, while the bureaucracy itself has proved remarkably adept at defending itself against political attacks.

Lacking other recourse, Republicans took an ironic turn: The professed believers in weak, limited government became champions of a superpowered presidency. By this means, they wagered, Republicans might dominate the administrative state and impose their agenda unilaterally. Democrats haven’t needed to do that because they saw bureaucrats and agencies as friendly forces. Republicans, by contrast, sought vastly more power to overcome and retrench a hostile, resistant bureaucracy.

The first pioneering step was Richard Nixon’s “administrative presidency,” in which he used the appointment of loyalists and other means to govern through bureaucratic control rather than legislation. The truly historic move, however, came with Ronald Reagan, whose Justice Department lawyers developed the theory of the “unitary executive,” which claimed that, under the Constitution, presidents had the exclusive legal right to control everything and everyone within the executive branch and to exclude Congress.

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The unitary executive theory was a Republican invention designed to solve a Republican problem: seizing and sabotaging the enemy. All subsequent Republican presidents have embraced it, as have numerous conservative judges, while Democratic presidents have relied upon it in smaller ways.

Presidents as threats to democracy

The unitary executive theory provides a veneer of legal authority for an authoritarian-inclined president to engage in a range of anti-democratic behaviors. By the time George W. Bush had shown what the unitary executive could justify — torturing prisoners, surveilling ordinary citizens, ignoring congressional statutes — constitutional scholars were already pointing to presidents as the chief threat to American democracy.

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With the rise of right-wing populism and the election of Trump in 2016, this threat was magnified by the accompanying transformation of the Republican Party itself, with its elites in Washington and around the country abetting Trump’s authoritarian behavior in office, protecting him against charges of inciting an insurrection, embracing his dishonest “stolen election” claims, passing dozens of new laws to restrict voting, and more. The Republican Party is now an anti-democracy party, and its future presidents — empowered by the unitary executive theory — threaten the fundamentals of the U.S. democratic system.

The two logics of presidential power, then, each rooted in the administrative state, have jointly given us a strongman presidency. Democrats have been complicit, but Republicans have pushed the trajectory beyond democratic bounds. It remains to be seen whether anything can be done about it.

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William Howell (@ProfWillHowell) is the Sydney Stein Professor in American Politics at the University of Chicago, director of the Center for Effective Government, and co-host of the “Not Another Politics Podcast” at the Harris School of Public Policy.

Terry Moe is the William Bennett Munro Professor of Political Science at Stanford University and a senior fellow at the Hoover Institution.

Together, they are the authors of “Presidents, Populism, and the Crisis of Democracy” (University of Chicago Press, 2020)