Red Tape

Hierarchy

The Federal Bureaucracy

The many arms of federal bureaucracy are often considered the fourth branch of government. This administrative structure, staffed by nonelected workers, enables the government to function as needed by citizens

Bureaucracy and Bureaucrat

• Bureaucracy: An administrative group of non-elected officials charged with carrying out functions connected to a series of policies and programs
  • A way to organize a large number of people toward a common purpose
• Bureaucrat: An individual who works in the bureaucracy and fills the necessary and instrumental roles in every area of government

Bureaucracy

Max Weber

Discretionary Authority

• Discretionary Authority: The extent to which appointed bureaucrats can choose courses of action and make policies not spelled out in advance by laws

• Legislatures cannot anticipate every contingency when writing statutes

• Discretion allows agencies to adapt policy using expertise — but raises questions about democratic accountability

Federal Bureaucracy

Cabinet Departments

• Perform essential government functions
  • State, Treasury, War (Defense)
• Reflect needs of a growing nation
  • Justice, Interior
• Clientele
  • Agriculture, Commerce, and Labor
  • Health and Human Services, Education, Veterans Affairs
• National priorities
  • Housing and Urban Development, Energy, Homeland Security

Independent Agencies

• e.g., NASA, EPA, FTC
• New ways to approach problems
• Avoid clientele pressure
• Independence from the president ???
• New functions

Origins of Independent Agencies

• Interstate Commerce Commission (1887)
  • Western farmers complained railroad monopolies were gouging them on shipping rates
  • Congress distrusted president Grover Cleveland to stand up to railroad pressure
  • Solution: expert, insulated rate-setting by a multimember commission
• Federal Trade Commission (1914)
  • Modeled on the ICC’s independence
  • Progressive Era belief in expert, nonpartisan regulation

Independent Agencies

• Humphrey’s Executor v. United States (1935)
  • FDR could not fire an FTC commissioner over policy disagreements
  • Congress can protect heads of multimember commissions (FTC, NLRB, SEC) from removal except “for cause”
  • Overruled by Trump v. Slaughter (2026): commissioners exercising “executive power” can be fired at will
  • Federal Reserve carved out in Trump v. Cook (2026)

Government Corporations

• e.g., USPS, FDIC, TVA
• Business corporations established by the federal government
• Receive no congressional appropriations

Civil Service

• The fall of political patronage practices led to the creation of the Civil Service Reform Act of 1883, establishing the Civil Service Commission, a centralized agency charged with hiring civil servants through a merit system

• Hiring practices and structured pay systems create an environment in which those most likely to succeed are in fact those who are ultimately appointed

• Preset examinations and civil service exams help determine required abilities and qualifications

• Civil servants receive pay based on the U.S. Federal General Schedule. The grades reflect different required competencies and education standards for various civil service positions

• The grade system provides a clear structure for merit-based advancement

Civil Service

• Recruitment and Retention
  • Largely merit-based
  • The buddy system: many mid-to-upper-level positions filled via “name-request” jobs rather than open competition
• Firing
  • Termination of employees involves a process
  • Senior Executive Service: created in response to how difficult that process had become
• Makeup
  • Cross-spectrum of Americans in civil servant positions.
  • Disparities in who serves in highest positions.
    • Race, Gender, Education

Copying the Crown

The initial executive branch of government was similar to the administration of King George III

Historical Eras of Government Development

• Divided Power: 1789–1860
• State Activism: 1870–1936
• National Activism: 1936–1960
• National Standards: 1960–1980
• The End of Big Government: 1980–2024 (?)
• Trump 2.0 and the Unitary Executive: 2025-?
  • Reconstituting the Administrative State

Divided Power: 1789–1860

• Responsibility for many policy areas was with state government

• The rise of centralized party politics in the 1820s, with many thousands of party loyalists, filled the ranks of bureaucratic offices around the country

• Most government agencies served the public but did not regulate

State Activism: 1870–1936

• Demands of the Industrial revolution

• Industrialization in the late nineteenth century increased both the population and economic size of the United States, creating a need for more government programs to be staffed by civil servants

  • Interstate Commerce Commission (1887), the Federal Reserve Board (1913), the Federal Trade Commission (1914), Federal Power Commission (1920)

• Interstate Commerce Commission (ICC) created to regulate the economy

Assassination of James Garfield

National Activism: 1936–1960

• The great depression and demands for action

  • “Alphabet agencies”

• National Industrial Recovery Act (1933)

  • Public works
  • Shifted authority to the president

• Federal Deposit Insurance Corporation (FDIC) (1933), Securities and Exchange Commission (SEC) (1934), Social Security Administration (1935), Agriculture and farm programs, Department of Health, Education, and Welfare (1953)

• People expected the government to deal with economic and social problems

National Standards: 1960–1980

• The reinvigoration of national activism in the 1960s

• Department of Housing and Urban Development (1965), Environmental Protection Agency (1970), Occupational Safety and Health Administration (1971), Department of Education (1979)

• The federal bureaucracy reflects the active role of the federal government

The End of “Big Government” 1980–2024

Which president said it?

Government cannot solve our problems, it can’t set our goals. It cannot define our vision. Government cannot eliminate poverty or provide a bountiful economy or reduce inflation or save our cities or cure illiteracy or provide energy. And government cannot mandate goodness

Jimmy Carter

The End of “Big Government” 1980–2024

Which president said it?

We know big government does not have all the answers. We know there’s not program for every problem. We have worked to give the American people a smaller, less bureaucratic government in Washington. And we have to give the American people one that lives within its means. The era of big government is over

Bill Clinton

The End of “Big Government” 1980–2024

• Reform of the bureaucracy

• Deregulation

• Privatization

  • Government contracts to private companies in order for them to provide necessary services

• Department of Government Efficiency (DOGE)

Big Government?

Democracy and Delegation

The people \(\rightarrow\) Elected officials \(\rightarrow\) Government Agencies

Democracy and Delegation

• Congress has delegated substantial authority to administrative agencies in three areas:
  • Paying subsidies to particular groups and organizations in society
  • Transferring money from the federal government to state and local governments
  • Devising and enforcing regulations for various sectors of society and the economy

Why Delegate?

• The bureaucracy has more expertise in these policy areas and more flexibility to make changes if necessary

• “Shift the responsibility” of decision-making to the agencies

  • Blame avoidance

Agency Policymaking

• Regulation: Specific standards or instructions concerning what individuals, businesses, and other organizations can or cannot do

  • Most consequential form of executive branch policymaking
  • The Take Care Clause

• Regulations are made through the rulemaking process

• Rulemaking: The agency process of translating congressional legislation into specific, actionable rules

  • Rules must have statutory authority

The Administrative Procedure Act (1946)

• The agency can only act within the limits set by statute

• The APA established the procedures an agency must follow to promulgate binding rules and regulations

• The agency must meet the following tests:

  • Be reasonable (sufficient factual support in the record)
  • Not be arbitrary or capricious
  • Not be an abuse of discretion

• Involves various stages and requires opportunities for public involvement

The Rulemaking Process

Drift and Divergent Policy Goals

Political Control

• Political Control:
  • External checks by political institutions
  • Elected officials use various oversight and control mechanisms to manage the bureaucracy
• Exercised by:
  • The legislature
  • The executive
  • The judiciary
  • Federalism

Political Control

Congress

• Authorization of agency
• Legislative language restricting discretion
• Budgetary control
• Police patrol oversight: Active monitoring
• Fire alarm oversight: React to complaints from citizens and/or interest groups

Political Control

President

Political Control

President

• Appointment of sympathetic agency heads
• Regulatory review prior to final rule enactment
• Executive orders
• Changes in budget authority
• Bureaucratic reorganization plans

Political Control

Courts

• The courts review agency actions to determine if they meet constitutional or statutory requirements
  • Is the action consistent with legislative intent?
  • Were proper procedures followed?
• Deference

Beyond Formal Checks: Informal Networks

• Iron Triangle: a stable, mutually reinforcing relationship among an agency, its congressional oversight committee, and the interest groups it regulates

• Issue Network: a looser, more contentious network of Washington-based interest groups, congressional staff, academics, think tanks, and mass media who discuss and advocate public policy

• Presidents often recruit agency officials directly from the relevant issue network

The End of Chevron Deference

• Under Chevron (1984), courts deferred to a reasonable agency interpretation of an ambiguous statute — Congress was presumed to have implicitly delegated interpretive authority to the expert agency

• The Major Questions Doctrine: on questions of vast economic or political significance, courts should not defer to agency interpretations absent a clear congressional statement of authority

• In 2024, the Supreme Court overruled Chevron outright — eliminating agency deference across the board

Has the Bureaucracy Gotten Too Powerful?

Schedule F and “New Patronage”

• Schedule F: reclassifies career civil servants in “policy-influencing” positions into the excepted service, removing at-will removal protections

• First created by executive order in 2020; revoked by Biden; reinstated by Trump on his first day back in office (2025)

• May be a new patronage — a 21st-century echo of Jacksonian patronage that prioritizes loyalty over merit and technical qualification

• Risks: incompetence, corruption, and a chilling effect on candid advice to political leadership

Reconstituting the Administrative State

• Several 2020s Supreme Court decisions have reshaped the administrative state along two tracks

• Reduced interpretive discretion: the end of Chevron deference and the Major Questions Doctrine

• Reduced structural independence: Trump v. Slaughter (2026) overruled Humphrey’s Executor, holding officials exercising “executive power” may be removed by the president at will — the Unitary Executive Theory