The Pendleton Civil Service Reform Act of 1883, one could argue, helped give birth to the administrative state, although it would take progressive presidents like Woodrow Wilson and his income tax, and FDR’s government works to really kick start the bureaucratic leviathan. Regardless of when it truly became a force in American political life, the administrative state is now and has been for some time a de facto branch of government. Separate for all intents and purposes, and if perhaps not quite equal, nonetheless often surprisingly powerful.

These past few days, then, have seen some major skirmishes – perhaps even battles – played out between Congress, the Executive and the Administrative State which theoretically and constitutionally should be a subordinate part of the Executive. Oh yes, and the courts too. A play in 3 acts one could say.

  • Act 1 & 2: The Supreme Court has sided with contractually based compulsory and binding arbitration as stated in the Federal Arbitration Act of 1925, and ruled against an employee of Epic Systems Corp of Wisconsin in the Epic Systems Corp v. Lewis case. A ruling in favor of collective bargaining rights would have held that the case should have been decided not under the Federal Arbitration Act but rather under the National Labor Relations Act of 1935, passed by FDR’s Congress in order to boost union power and collective bargaining rights. It needed an independent agency to administer it’s quasi-judicial functions and so the National Relations Labor Board was born at the same time. The Supreme Court decision means that individual arbitration as enforced by employer contracts supersedes collective bargaining rights. It was a 5-4 split decision with the dissenters apparently bitterly opposed to the majority, and with Gorsuch writing the majority opinion. A blow to the power of quasi-judicial independent agencies like the NRLB.
  • Act 3: On Monday President Trump signed a Congressional resolution that negates an administrative guidance – it didn’t even rise to the level of a regulation – issued by the Consumer Financial Protection Bureau. It dealt with dealer mark-ups in car loans and apparently was meant to correct what was seen as racial bias on the part of auto dealers when establishing rates for car loans. The industry objected and said the studies (one by the CFPB itself) used dubious methodology. Despite just being guidance the CFPB enforced their guidance with an avalanche of lawsuits to ensure compliance. In Congress, Republicans and some Democrats used the Congressional Review Act from 1996 to vote to repeal the guidance under a simple majority. Here’s what Sylvan Lane wrote in The Hill:

The move caps off an unprecedented use of congressional power, as lawmakers had never before passed such a resolution to revoke informal guidance from a federal agency.

Ok, just a second. Yes, maybe it’s unusual given Congress’ propensity as of late to hand off the details of legislation to independent agencies and to let the courts eventually rule on the matter. But unprecedented? It seems more like a case of Congress returning to it’s original precedent. Debating and passing the nation’s laws, in as much detail as necessary to make the laws function and be understood by voters.

And of course, the Mueller probe is increasingly becoming about how independent the Department of Justice – created by Congress and part of the Executive power and therefore beholden to the White House – really is rather than whether there actually was any collusion with Russia. And also how partisan the FBI – which operates under the jurisdiction of the DOJ – has become.

So, it could be that some 135 years after the Pendleton Civil Service Reform Act – which was meant as a way to prevent patronage in government appointments – has found it’s bookend, marking the end of its useful life. Of course, it will live on for years, but at least now it’s usefulness can finally start to be questioned.