Ben Sasse loves to wax poetic about the constitutional separation of powers, which is odd considering that he adamantly refuses to enforce them. Nevertheless, Sasse’s fixation is quaintly charming at a time when most Republican politicians prefer to skip the civics lectures and just own the libs. During Tuesday’s confirmation hearings for Brett Kavanaugh, the Republican senator from Nebraska devoted his opening statement to a disquisition on the three branches of government, tying the politicization of Supreme Court nominations to the decline of legislative independence. The courts, Sasse insisted, have become political because Congress stopped passing laws, instead leaving lawmaking to “power hungry executive branch bureaucrats” with no democratic accountability.
Sasse’s theory is very interesting, but not because it’s original (it’s cobbled together from white papers belched out by conservative think tanks) or correct (it isn’t). Rather, it’s worth highlighting because it aligns perfectly with Kavanaugh’s jurisprudence, as well as the Trump administration’s agenda. Sasse and Kavanaugh believe the president cannot be questioned or restrained, but executive agencies must be ruthlessly crushed. That’s what “separation of powers” means to the GOP in 2018, and it’s what Kavanaugh is poised to enshrine in our Constitution.
To be sure, America’s founding charter creates stark divisions between the executive, legislative, and judicial branches. And it undoubtedly expects Congress to act as a check upon the president—not just by passing those laws that the president must then enforce, but by conducting oversight into his exercise of executive authority. Sasse was absolutely correct when he declared on Tuesday that “the legislative branch is supposed to be the locus of our politics.” But it is puzzling to hear him express this sentiment when he has relinquished his own constitutional duties and pursued an approach of checking the executive branch via tweet and press release. Instead of pushing for legislation or hearings that might rein in Trump’s excesses, Sasse issues strongly worded statements. That is not how the Framers envisioned Congress restraining the chief executive.
When Sasse perorates about separation of powers, then, he could not possibly be referring to legislative limitations on presidential excesses. So, what is he talking about? Here’s how Sasse framed the putative problem on Tuesday:
Especially since the 1930s and then ramping up since the 1960s, a whole lot of the responsibility in this body has been kicked to a bunch of alphabet soup bureaucracies … where most actual lawmaking is happening right now. There’s no verse of “Schoolhouse Rock” that says give a bunch of power to the alphabet soup agencies. The people don’t have any way to fire the bureaucrats. … A lot of the power delegation that happens from this branch is because the Congress has decided to self-neuter.
While Sasse is not troubled by an imperial president who amasses an unprecedented amount of power in a single branch and wields it with spite and caprice, he is upset that executive branch agencies exist and do things. That is the thrust of the senator’s statement: The “administrative state,” an entrenched and unsanctioned “fourth branch of government,” allegedly rules “the people” while Congress withers on the vine.
What, exactly, is this sinister “administrative state”? In short, it comprises those agencies that the Trump administration is trying to defang or destroy. There are dozens of them, but only a few are familiar to most Americans. The Departments of Education, Labor, Justice, State, and Transportation. The Environmental Protection Agency. The Consumer Financial Protection Bureau, which was established to regulate Wall Street in the wake of the 2008 crash. Congress passed laws creating these agencies, tasking them with implementing a complex set of regulations that legislators are too busy, lazy, or inexperienced to execute on a continual basis. The “administrative state” is what keeps mercury out of your air, discrimination out of your schools, and predatory lenders out of your wallet.
Or at least it did, until the Trump White House began slashing regulations and hobbling agencies to prevent them from carrying out their core missions. This administration shares Sasse’s belief that executive agencies are if not illegitimate, then inherently suspect, and that most of the rules they promulgate should be repealed. The true threat to the separation of powers, according to Sasse and the White House, isn’t a legislative branch that kowtows to the executive’s every whim. It’s the existence of agencies that attempt to interpret and enforce federal law in a coherent and consistent manner.
Justice Clarence Thomas also shares this opposition to the “administrative state,” which partly explains why so many of his clerks have gone on to serve in the Trump administration. So does Brett Kavanaugh. In one of his most famous dissents, Kavanaugh declared war on what he called “a headless fourth branch of the U.S. Government.” He asserted that the CFPB is unconstitutional because it is run by a single director who serves a five-year term and cannot be removed by the president without cause. Framing the case as one “about executive power and individual liberty,” Kavanaugh claimed that the president must be allowed to fire the CFPB’s director at will. Along the way, he cast doubt on the constitutionality of a law creating a special counsel, a piece of legislation that the Supreme Court declared constitutional in a 7–1 ruling.
The leitmotif of this dissent—as well as his many other anti-regulatory opinions—is that the president himself has vast powers to govern the country as he sees fit, and may even refuse to enforce laws he dislikes. Meanwhile, executive agencies must have extremely limited authority to carry out the duties Congress assigned to them, lest they stray from the will of the president and bring about “tyranny.”
This theory is music to the ears of plutocrat Republican donors and corporations who dislike regulations. It is also nonsensical. Kavanaugh, like Sasse, thinks executive agencies are “unaccountable.” Yet their actions are governed by the Administrative Procedures Act, which requires them to publish proposed rules in advance, explain their justifications, and accept public comments. Once the agencies’ rules are formalized, they are subject to a range of court challenges—as the Trump administration knows, since many of its rules have been invalidated for being arbitrary and capricious.
Moreover, the “power hungry executive branch bureaucrats” that Sasse condemned actually are pretty accountable. They are certainly more democratically accountable than life-tenured federal judges, to whom Sasse and Kavanaugh would prefer to give the final say on the meaning of ambiguous federal laws. Each president gets to appoint new Cabinet secretaries and stock agencies with “bureaucrats” who will carry out their mission. The president can also fire many of these top-ranking officials, as Trump has gleefully illustrated. If the people don’t like the president’s choices, they can vote him out. Most agency heads are also Senate-confirmed; if the people dislike them, they can vote out the senators who approved them.
Sasse views these agencies as a fundamental threat to democracy. Kavanaugh appears to, as well, although he surely won’t admit it during this week’s hearings. Their frustration is misplaced. True, the federal government is currently failing to live up to the Framers’ expectations, but that’s not because of the CFPB (which Sasse loathes as much as Kavanaugh does). It’s because Congress won’t do its job and serve as a check on Trump. Unfortunately, neither Sasse nor Kavanaugh has any desire to change that. Once on the court, Kavanaugh will carry out Sasse’s agenda of crushing agencies while expanding presidential power. Sasse will call that a triumph for the Constitution. In reality, it’s just a victory for the Republican Party.
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