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8. Bureaucaracy: A Controversial Necessity, Readings
Topic Overview Using the Video Readings Critical Thinking Activity Web-Based Resources

 


 

 

Readings Unit 8

The Readings for Democracy in America unit 8 are available here for download as a PDF file. You'll need a copy of Adobe Acrobat Reader to read the files. Acrobat Reader is available free for download from adobe.com.

Download Unit 8 Readings, Bureaucracy: A Controversial Necessity

  • Introduction—Bureaucracy: A Controversial Necessity

  • Tocqueville, Democracy in America: “Public Officers Under the Control of the American Democracy”

  • Federalist Papers: “Federalist No. 72”

  • Myers v. U.S.

  • Humphrey’s Executor v. U.S.

Questions

  1. What does Tocqueville say about the role of costume for public officers?

  2. What does “Federalist No. 72” argue concerning term limits?

  3. How much weight, according to Chief Justice Taft, should the Supreme Court give to legislative action by Congress during the early period of American government in which many of the founders were still participating in public affairs?

  4. What evidence supports the Supreme Court’s assertion that the Federal Trade Commission is not an arm or eye of the executive?

Introduction—Bureaucracy: A Controversial Necessity

In the middle of the twentieth century, the American government and democracy experienced several major changes: rights and liberties became major focuses of politics, moreover, law itself was increasingly made, not directly by legislatures but by administrative agencies. Technically, some administrative agencies commingle the elements that the Constitution took great pains to separate. Laws regulating every aspect of American society are now made, enforced, and adjudicated, not directly by Congress, the president, and the courts, but by administrative agencies.

An agency like the National Labor Relations Board (NLRB)—the agency created by Congress to regulate unions—for example, performs aspects of all three branches of government. The NLRB creates rules that are indistinguishable from legislative enactments in that they regulate behaviors and carry the weight of law. While it has this power, the NLRB also exercises a great deal of executive power. It, like the executive branch, carries out legislative policies, particularly acts such as making prosecutorial judgments. The NLRB, furthermore, exercises judicial power in such actions as adjudicating conflicts between employers and unions.

Included in this section of readings are various Supreme Court cases in which the Court adjudicated questions of the ability of Congress to create executive agencies that could function with such extensive powers. The Court supported the deferral of legislative power to executive agencies in Myers v. United States (1926). The President discharged a postmaster who subsequently sued claiming that under that statute that created his position, he could only be removed with the consent of the Senate. The Supreme Court held the statute unconstitutional because, former President, now Chief Justice, William Howard Taft concluded it was unconstitutional for Congress to interfere in the president’s ability to remove from a position of authority someone charged with executing the law. Nine years later the Court clarified the reach and limits of Myers; in Humphrey’s Executor v. United States (1935) the Court reduced the reach of Myers. In this case, President Franklin Roosevelt removed a commissioner of the Federal Trade Commission, whose family sued (he subsequently died) for back pay, claiming that Congress had designed the president’s removal power in such a way that he could only remove someone for a good cause. In this case, the Court upheld the limitation on the power of the executive branch and agreed with the claimant family that the Congressional limitation on the executive’s removal power was constitutional. The Court, in this case, rejected the view that the president has unchecked power to remove agency officials. The case proved additionally important to the growth of the administrative state in that it supported the ability of Congress to delegate power not solely to Cabinet officials who directly serve the president but to independent agencies as well.

The deference of Congress to the president strengthened the power that executive agencies exercise over American citizens and society, making the agencies some of the most powerful institutions of government in the twenty-first century. The readings collected in this section explore more than the Supreme Court’s account of the growth of the power of executive agencies. They also explore the account offered in the Federalist Papers that warns of the dangers inherent in executive institutions.

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