Puritan Nation

The moral and political principles Americans defended in 1776 were already generations, even centuries, old. The moral principle of the dignity of man carried forward the convictions of the ancient Hebrews through the religious impulse of the Puritan settlers. From those convictions arose protections for natural rights, tempered by the needs of circumstance.

Yet the same religious inheritance that affirmed the glory of man also recognized the stain of original sin. Human dignity existed alongside human imperfection. Seen in this light, the supposed “split personality” of Publius in The Federalist disappears. The tension between a sober view of human nature requiring institutional restraint and a confidence in the possibility of public virtue simply reflects the Framers’ religious understanding of the human heart. Humane order accounts for both tendencies: the glory of the Imago Dei rising toward the heavens and the weight of original sin pulling toward the abyss.

The political principle of ordered liberty likewise emerged through historical development, growing out of the constitutional experience of medieval and early modern England. Through English constitutional institutions—often more fully developed in the American colonies—order, justice, and freedom were sustained.

The president has less de facto control of the executive regulatory agencies than he ought to have as the head of the Executive Branch. But he himself also has too much power. One example now conspicuously in the public eye is the de facto powers the president now enjoys to unilaterally tax imported goods—that is, to levy tariffs.

According to the Constitution, the power to levy taxes lies with Congress. Article I, Section 8 reads: “The Congress shall have the Power to lay and collect Taxes, Duties, Imposts, and Excises.” In the beginning, tariff schedules, like all federal tax schedules, were determined by Congress. Tariffs were the main source of federal revenue into the early twentieth century, prior to the establishment of the federal income tax in 1913. The prospect of the president unilaterally determining the particulars of any tax, let alone such an important array of taxes for revenue purposes, would have appeared unjust to many of our founders. […]

Congress began to delegate its tariff powers to the Executive Branch in 1934. At the encouragement of the Secretary of State Cordell Hull, Franklin Roosevelt secured the passage that year of the Reciprocal Trade Agreements Act (RTAA).

The growing conservative support for a unitary executive goes well beyond Trump’s own desire to centralize decision making within the White House. Conservatives have long questioned the power of “iron triangles”—a nexus of special interests, congressional subcommittees, and agency bureaucrats—over regulatory policy. University of Chicago’s Nobel prizewinning economist Goerge Stigler observed as early as 1971 that independent regulatory agencies fail to serve the public interest but are captured “by industry and are designed and operated primarily for its benefit.” That argument appeared in the oral argument when Justice Brett Kavanaugh asked about the “dangers” independent agencies posed, giving the Trump Administration’s attorney the opportunity to refer to Stigler in his response: “is [the danger] . . . industry capture of the agencies?”

Today’s liberal justices are more tolerant of special interest representation on regulatory commissions, perhaps because, in the words of a New York Times commentator, the use of independent regulatory agencies “has meant more corporate regulation.” Justice Ketanji Brown Jackson spells out the liberal position: “Congress has decided that some issues, some matters, some areas should be handled . . . by nonpartisan experts . . . that expertise matters. . . So having a president come in and fire all the scientists and the doctors and the economists and the Ph. Ds and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens.”

Independent regulatory agencies date back to 1887 when Congress created the Interstate Commerce Commission (ICC). Its job was to protect railroad corporations from the rising strength of farmers and small business operators in prairie and mountain states, who insisted on low shipping fees. Oklahoma, for example, ratified a constitution that required a rate of no more than two cents per mile.

As transportation systems became more complex, Congress expanded the ICC board from five to eleven members to accommodate the concerns of additional interests (such as truckers, bus lines, pipelines, and water carriers), but special-interest self-regulation introduced such massive inefficiencies into these industries Congress finally dismantled the agency (though the Surface Transportation Board (STB) took on some of its functions).

It is another oddity that Franklin Delano Roosevelt (FDR) is credited with the spread of ICC-style agencies when in fact he would have preferred more direct control. It is true he made use of the institution when he sought legislation that would allow him to regulate the economy in ways thought necessary to combat the depression. The independent agencies proved so popular there is now, depending on how one counts, an “alphabet soup” of 20 to 25 such entities, including the Security and Exchange Commission (SEC), National Labor Relations Board (NLRB), Federal Maritime Commission (FMC), the Federal Energy Regulatory Commission (FERC), Tennessee Valley Authority (TVA), and the Federal Trade Commission (FTC) on which conservative Republican William E. Humphrey served until FDR fired him. Humphrey then died, leaving behind an Executor to fight successfully for compensation to the estate for the time the commissioner would have served.

But FDR’s dismissal of Humphrey reveals the president himself was not enamored with independent agencies. Instead, they were promoted by a Republican-southern Democrat coalition in Congress, seeking to place limits on the power of a strong president. The coalition was solidified by Republican opposition to a powerful unitary executive and southern Democratic insistence that segregated institutions in the South be protected from national interference.