The Constitutional Debate Over the Fourth Branch of Government

Introduction

Ask most Americans what the three branches of the federal government are, and they will happily name Congress, the presidency, and the courts. That division of government power has been enshrined in the Constitution for more than two centuries. But when it comes to day-to-day governance, the feds rely on entities outside of the presidential administrations and the legislative branch. Independent agencies like the Securities Exchange Commission, Federal Trade Commission, and Federal Communications Commission are responsible for enforcing laws, investigating, bringing lawsuits, and making rulings over certain sectors of the economy.

But if the Constitution only recognizes three branches of government, where do these dozens of government entities fit it? What is their proper role and how much power should they possess?

The agencies were created because of the growing complexity of the U.S. economy and government during the Gilded Age. As the U.S. transitioned from an agricultural to an industrial society in the nineteenth and twentieth centuries, lawmakers struggled to control railroads, the telegraph, and other new inventions and industries that required oversight.

Congress passed dozens of laws to create scores of independent agencies that had the authority to investigate and bring cases against violators. Lawmakers reasoned that it would be unwise to rely on the President or Congress to regulate so many complicated matters. Instead, they tasked various agencies with studying these industries and creating rules to govern them. This approach continued through the twentieth and twenty-first centuries.

Why Agencies Are Unique

There are several reasons why independent agencies deserve a separate designation. First of all, they serve as a buffer between the President and the industries under its jurisdiction, and agency heads cannot be removed from office as easily. For example, the Constitution allows the President to fire federal judges whom he appoints, but lawmakers designed other agencies to have more autonomy. By giving agency heads longer terms in office or limiting the President’s ability to remove them at will, legislators ensured that these officials could make decisions based on professional qualifications rather than political motivations.

In addition, agencies perform the roles of all three branches of government. They engage in rule making functions, which is a legislative task, investigate potential violations, which is an executive responsibility, and can even hold trials, which is a judicial one. Because of their hybrid nature, some lawmakers and scholars refer to them as the “fourth branch of government.”

The Arguments For and Against Agencies

Supporters of agencies argue that they are a crucial ingredient in the modern government. Agencies provide a critical function in today’s world in that they serve as experts on the matters entrusted to their supervision. Their specialized knowledge is necessary to regulate certain industries, from finance to the environment to tech.

Lawmakers may lack the technical know-how to understand securities markets, so they have to rely on the guidance of the experts within agencies like the SEC. Agencies are also said to promote consistency and predictability in the law. If the President can replace agency heads and completely undo their rules as soon as he assumes office, then businesses and ordinary Americans cannot be sure of what regulations will be in place at any given time.

Meanwhile, critics of agencies argue that they are undemocratic. The framers created a government of separated powers precisely because they feared that a single entity would gain too much control. By consolidating legislative, executive, and judicial authority within agencies, the government has made it harder for citizens to hold officials accountable. Critics also argue that agencies exert too much influence over the separation of powers. When Congress passes laws that delegate too much authority to agencies, it has essentially given up its constitutional responsibilities as the lawmaking body.

Why It Matters

Many people do not think about independent agencies on a daily basis, but these entities nonetheless exert tremendous influence over American lives. The rules and regulations that govern everything from securities markets to the environment to employment laws were written in agencies. Additionally, businesses are constantly adapting to new regulations, and courts are constantly reviewing whether agencies are following the Constitution. Moreover, as the U.S. becomes more dependent on digital technology and artificial intelligence, agencies are charged with making sense of these issues and regulating them. And that is exactly what lawmakers want agencies to do.

Conclusion

Agencies represent one of the most contentious issues in American politics. They are simultaneously necessary and unwise, popular among lawmakers but difficult to control, and crucial to regulating modern society but susceptible to abuse. And as American society becomes more sophisticated and nuanced, so must the government be in order to meet its demands. How agencies fit into the wider constitutional design will be determined by future historians and lawmakers.