NCPA - National Center for Policy Analysis

Taming the Fourth Branch of Government

October 27, 2011

In spite of President Obama's public championing of efforts to rein in the regulatory state, federal regulations continue to abound as governmental agencies take on unprecedented amounts of power over policy.  Acting increasingly as a fourth branch of government, the influence that these agencies wield subverts the principles of the Constitution by flouting the structure of government that it espouses, thereby damaging the founding principles of American government in addition to harming its economic wellbeing, says Kathleen Hartnett White, director of Armstrong Center for Energy & the Environment at the Texas Public Policy Foundation.

  • The Federal Register has increased in size from some 11,000 pages in the 1950s to about 80,000 currently -- 3,500 new policies have been adopted in the last three years alone.
  • Additionally, 4,257 new policies are currently in the pipeline to adoption.
  • A 2009 report from the Small Business Administration estimates that the aggregate cost of major regulations alone amounts to $1.75 trillion per year.

Furthermore, a number of developments over time have entrenched the clout of the federal agency conglomerate in federal decision-making.  First, agencies have slowly been given greater latitude for independent decision-making over the last few decades.  This trend is largely due to the increasing number of responsibilities that the federal government takes on.

Second, their function is largely informed by broad grants of power from Congress.  In principle, the non-delegation doctrine necessitates that the legislative branch maintain control over policy creation.  However, precedents that are tested by time and cemented by the judicial branch have allowed Congress to confer upon an executive agency wide-ranging authority, so long as their actions are guided by an explicit (though frequently vague) principle.

Finally, individual members of these agencies are increasingly difficult to rein in or circumvent because most are staffed by the civil service -- meaning it is nearly impossible to fire them or replace them.

Source: Kathleen Hartnett White, "Taming the Fourth Branch of Government," Texas Public Policy Foundation, October 2011.

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