The Lost Department

A few days ago, I pulled out my copy of the Constitution and started reading it the way I imagine the Framers would have wanted it read - as a real, binding document, not a suggestion box. I landed on Article II and the part about executive departments, and I thought, have we lost our minds? What the Constitution describes and what Washington has become are two different countries. The Framers gave us an executive department - small, accountable, limited - and we have turned it into an administrative empire that nobody voted for and nobody can control. This is not a failure of policy. It is a failure of judgment. The Founders exercised remarkable judgment about human nature and the concentration of power. We have exercised terrible judgment by ignoring them.

The Original Judgment

The Constitution mentions executive departments only in passing. Article II, Section 2 says the President can require the principal officer in each executive department to give an opinion in writing. That is it. The Framers did not define them because they assumed a basic reality: there would be a handful of departments - State, Treasury, War, maybe a few more - each headed by a single person the President could hire and fire at will. This was a deliberate judgment about accountability. If the Treasury Secretary fails, the President fires him. If the War Secretary blunders, the President replaces him. The chain runs straight to the ballot box. The people know who to blame, and the President knows he will be held responsible. That is the kind of government that respects the judgment of voters.

James Madison spelled this out in Federalist No. 51. The whole structure of separated powers depends on giving each branch the means to resist the others, but also on making each branch accountable to the people. The executive department was designed to be controlled: controlled by the President, controlled by Congress through appropriations, controlled by the courts through judicial review, and ultimately controlled by the electorate. It was a judgment that concentrated power is dangerous unless it is also concentrated responsibility. You cannot have one without the other.

The Judgment That Went Wrong

Somewhere in the late nineteenth century, the judgment of the American political class began to shift. The Progressive Era intellectuals decided that democracy was too messy. They thought experts should run things, insulated from the vulgar pressures of politics. Woodrow Wilson wrote that administration should be separate from politics - a direct rejection of the Founders' view that administration is part of politics and must answer to elected officials. This was a catastrophic error in judgment.

So Congress started creating independent agencies: the Interstate Commerce Commission in 1887, the Federal Trade Commission in 1914, the Federal Power Commission in 1920. Each was structured to be independent of the President. Commissioners served fixed terms and could only be removed for cause. The idea was that these experts would make scientific, nonpartisan decisions. The result was the opposite. When no elected official is responsible, nobody is responsible. When an agency is independent, the President can blame the commissioners and the commissioners can blame the President, and the citizen is left with nobody.

Milton Friedman understood this. He often pointed out that the greatest threat to liberty is not the explicit tyrant but the diffuse bureaucracy where nobody in particular makes the decision. When a regulation ruins your business, who do you blame? The agency head who cannot be fired? The commissioners appointed by a previous administration? Congress that passed a vague statute forty years ago? The courts that let it stand? In a system of diffused responsibility, accountability evaporates. That is a design flaw rooted in bad judgment.

The New Deal and the Collapse of Constitutional Judgment

The New Deal was the moment when the old constitutional structure finally broke. The Supreme Court initially showed good judgment. In 1935, it struck down the National Industrial Recovery Act in Schechter Poultry v. United States, ruling that Congress had delegated legislative power to the executive without adequate standards. That case is still good law, but the Court promptly abandoned the nondelegation doctrine in practice. Starting in the late 1930s, the Court allowed Congress to hand off vast lawmaking authority to agencies as long as it provided the thinnest of intelligible principles.

This was a failure of judicial judgment. The nondelegation doctrine is the constitutional firewall between the legislative and executive branches. If Congress can delegate its power to make law, then the separation of powers means nothing. The executive department becomes a legislative department as well. Friedrich Hayek warned about this in The Road to Serfdom. When administrative agencies make rules with the force of law, the rule of law itself breaks down. Citizens cannot know what the rules are because they change with every agency interpretation. The knowledge problem - the impossibility of central planners knowing what people actually need - becomes doubly dangerous because the planners are also the rule-makers and the judges.

Consider the modern Environmental Protection Agency. It regulates greenhouse gases under a Clean Air Act that never mentions them. It defines "waters of the United States" so broadly that a puddle in a farmer's field becomes a federal waterway. The EPA writes rules that have the force of law without a single vote in Congress. This is not the judgment of the Framers. This is the judgment of the Progressive Era: that experts know better than the people and their representatives.

The Constitutional Cure and the Return of Judgment

The cure is not complicated, but it requires a return to constitutional judgment. The unitary executive doctrine, properly understood, is not about giving the President more power over the economy or the citizen. It is about giving the President full responsibility for executing the law, so that the people can hold him accountable. Every federal officer who exercises coercive power - who can fine you, imprison you, or regulate your business - must be answerable to the President, who is answerable to the voters.

And the President can only execute laws that Congress actually passes. The nondelegation doctrine must be revived. In West Virginia v. EPA in 2022, the Supreme Court took a step in the right direction, holding that agencies cannot decide major questions of economic or political significance without clear congressional authorization. That case was a victory for constitutional judgment, but it is only the beginning. We need a full restoration of the nondelegation doctrine and a recognition that independent agencies - agencies the President cannot control - are unconstitutional on their face.

Look at the Consumer Financial Protection Bureau. It has a single director who serves a five-year term, can only be removed for cause, and receives funding outside the appropriations process. In Seila Law v. CFPB in 2020, the Supreme Court struck down the for-cause removal provision for the CFPB's single director, but the funding mechanism remains intact. The CFPB still operates outside the normal executive department structure. It is a constitutional anomaly that reflects decades of bad judgment.

What This Means for the Ordinary Citizen

You own a small construction company. You want to build a house on a piece of land with some wet ground. You check with the local zoning board - all clear. You get your permits. You start digging. Then the EPA shows up. They tell you that the wet ground is a waters of the United States, even though it is not connected to any navigable river or lake. They fine you seventy-five thousand dollars. They tell you to restore the land to its original condition at your own expense. You ask to see the law. They point to a regulation, which interprets a statute, which says navigable waters - but a previous administration's EPA redefined that phrase to include any area where water might flow after a heavy rain.

Who do you blame? The EPA Administrator was appointed by the President, but cannot be fired except for cause. The President cannot easily remove her. Congress passed a vague statute forty years ago and has not touched it since. The courts would take years and cost you your life savings. This is not republican government. This is administrative despotism, and it exists because we abandoned the Founders' judgment about how to structure executive power.

Three Steps to Restore Judgment

We need to do three things, and they all require better judgment than we have shown in the last century.

First, restore the nondelegation doctrine. Congress should not be allowed to pass vague statutes and hand them to agencies to fill in the details. If Congress wants to regulate greenhouse gases, it should pass a law saying so and take the political consequences. If Congress wants to protect wetlands, it should define them clearly and defend that definition at the ballot box. This honors the constitutional judgment that lawmaking belongs to the people's representatives.

Second, restructure independent agencies. Every federal officer who exercises coercive power should be removable by the President at will. The Federal Reserve, the SEC, the FTC, the FCC - they should all become executive departments or be abolished. If the President cannot control them, the people cannot hold the President accountable. That is the judgment of the Framers, and it is sound.

Third, eliminate self-funding agencies. Every federal agency should go through the appropriations process every year. The CFPB's funding from the Federal Reserve is a constitutional abomination. Agencies that can fund themselves without congressional approval have no incentive to listen to the people. The power of the purse belongs to Congress, not to the executive branch. That is a constitutional judgment that we have allowed to erode.

The Final Judgment

The executive department the Framers designed is still there in the text of the Constitution. It is not complicated. It is not mysterious. It is a small, accountable, law-executing branch that answers to the President and the people. We have replaced it with something else: a sprawling administrative state that operates by its own rules and answers to nobody. That is a failure of judgment - a failure to honor the wisdom of the Founders, a failure to learn from Hayek and Friedman and Sowell about the consequences of concentrated power, and a failure to hold our own government accountable.

But it is not too late. The Constitution is still there. The principles are still true. We simply need the judgment to return to them. The lost department can be found, but only if we are willing to admit that we lost it in the first place. That is the first step toward recovery.