What now for Independent Agencies?

Conservatives should be careful what they wish for

President Trump is picking many fights, some of which do not please conservatives. But when he battles to take control over “independent” agencies, he gets support from the WSJ editorial board and from Yuval Levin. Levin notes that years ago he wrote,

Bringing these agencies under the umbrella of presidential review and control would be a step toward bringing them more generally into the fold of the constitutional system, which has only three branches of government and no fourth super-branch of regulators.

Now he writes about two types of assertion of Presidential power.

those rooted in the view that the president commands the executive branch are appropriate and useful, while those rooted in the view that the executive branch commands our government are misguided and pernicious.

He hopes that the other branches of government will be able to check Presidential power once the agencies lose their independent status. I doubt that Congress and the Judiciary are up for the task.

Lorenzo Warby writes,

DOGE is an aggressive structure of auditing the Executive Branch. They are the tech-bro version of the Chinese Imperial Censors, of the Censorate.

The lesson from Confucian China is that a merit-based bureaucracy can be effective at first, but over time it decays as the elites learn to game the system and exploit it. We seem to have reached that stage in the U.S.

Is Levin correct that the solution is to have the President restore his Constitutional role and take control of the agencies? I do not think so. The regulatory regime has become too complex for the President to directly take control.

And what if Presidential control over the bureaucracy were feasible? The Presidency would become a frightening power center. We have to take into account the vast increase in the size and scope of the Federal government that has taken place over the past 150 years. If the President could freely work his will over this apparatus, the results would be frightening.

For libertarians, one solution is to somehow claw back most of the power that has accumulated in Washington. I think there is much to be said for that. But much as I would like to believe otherwise, I think that in a 21st century society it is impractical to pare back the state’s regulatory power to what it was two hundred years ago. I am afraid that we have to live with the regulatory state.

The approach that I recommended, in a journal edited by Levin, is to have a Chief Operating Officer to oversee the agencies. The idea is for the President to appoint someone with more time and better experience than the President himself.

In that same article, I also recommended a powerful Chief Auditor. This would serve as a check on the power of the COO and the agencies.

Warby’s piece can be read as saying that President Trump has given Elon Musk a role like that of the Chief Auditor. If so, then I am bound to be supportive.

The independent agencies are a product of the Progressive era. Progressives wanted to increase the power of voters (direct election of Senators, initiative, recall) while at the same time bringing expertise into government. You can think of this as trying to take power away from politicians and give it to a combination of experts and the people.

The intentions of the Progressives might have been good. But the populist side of the Progressive movement has evaporated. Today’s Progressives fear the voters, who they regard as a threat to “our democracy.”

The expert-management side of Progressivism is working no better. The “independent agencies” have evolved into a self-licking ice cream cone, meaning that their main goal is self-perpetuation, not service.

Moses Sternstein points out that there is no gradual, orderly way to trim bureaucracy.

all of bureaucracy’s natural defenses are designed to immunize itself from bureaucratic change—“oh, you’re right, there’s too much red tape, we’ll get a committee working on that right away.” Bureaucracy’s sole weakness, however, is against executive action.

On several occasions, I have pinpointed lack of accountability as a fundamental flaw with the “independent agency” model. Authority should come with accountability. But without the Chief Auditor function, or, as Warby would have it a Censorate, bureaucrats have authority without accountability. That is clearly against the spirit of the American Constitution. And it has allowed decay to set in.

I wish that bringing accountability to the bureaucracy were a consensus demand. I think that it is in the broad public interest. But the political system is polarized, with the left hysterically opposed to reform. Partly that is because the Democratic Party has come to rely on constituencies, in the education sector for example, for whom accountability represents a threat.

I worry that Mr. Trump will establish Presidential authority over the bureaucracy in a way that conservatives will come to regret. Loss of independence for the agencies will be good for conservatives only until the next time the left wins a Presidential election.

Most of all, I fear that stronger Presidential control will come without permanent accountability. Everyone regards DOGE as a short-term project, when I think that auditing the bureaucracy requires eternal vigilance.

substacks referenced above: @

DOGE-cession freakout

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The West continues to imitate Dynastic Cycle China