Refederalist No. 8 — Executive Abstention Strategy: An Outline

An Election Changes Nothing — Change Requires New Politics

If we elect even the most radically libertarian candidate as President, reform will fail without a strategy to defeat the administrative state.  Executive abstention on Constitutional grounds is the hinge of this strategy.  Governing through a political machine that progressives built, can succeed only on terms the progressive machine permits.  This is the genius of their achievement.  Progressives steadily moved politics outside Constitutional structures, and so free of Constitutional constraints. While winning elections is necessary, lasting victory needs a political/legal strategy against the administrative state. Dismantle it with the Constitution’s tools, and by calculated Executive abstentions, we can bring politics back into the Constitutional embrace.

A famously perennial comment:  ‘insufficient opportunities for graft,’ is the reason reforms fail.  A fundamental truth lies in this comment:  all politics is patronage.  The national patronage system now runs on two legs:  1) subsidy, and 2) regulatory discretion.  Baroque variations exist, but all that patronage now flows through the instrumentalities of the administrative state.

No politics works without patronage of some kind. Reform requires patronage to flow from Constitutional structures, so that politics supports it instead of evading it.  Do not change the administrative state’s marginal operation – remove its structures and shift its personnel to proper Constitutional roles. Use the Constitution as the rubric to break up the administrative state and shift the flow of patronage to fit a durably decentralizing reform.

The strategy outlined changes the administrative state from the dispenser of patronage, into the substance of that patronage – redistributing its personnel and structural elements to the State governments and to the coordinate branches. Government is the stock-in-trade of the Progressive movement.  So, sell it off politically, not just the inventory – but store locations, fixtures, equipment and employees, as well.  FDR’s “bold, persistent experimentation” can be turned to opposite purpose — with boldness, plus a different playbook.

President Obama has actually done us a great favor. We now know our system well endures some radical license in interpretation – such that Chicken Little scaremongers can be dismissively mocked.  While he used debatable exceptions, hostile to Constitutional principles, we can return to strict terms of the Constitution. The Constitution is the engine.  The political fuel must be a new system of patronage, deployed radically — but incrementally.

The Chief Executive’s political power can grow by trading away his nominal or formal power.  This is now vested in agency personnel who dispense the patronage – and often neutralize any reform policies. The President can gain real political power over reform by trading away these questionable ‘assets’ who are organically hostile to reform anyway.  The process can be managed incrementally – initially, staff remaining in place.  Individuals or teams may be sent off on isolated, temporary ‘collaborative assistance’ projects negotiated with interested State institutions and elements of the coordinate branches, provoking little systemic resistance. Soft rhetoric ought to provoke less interest in its true structural impact.  Or, as it seems necessary, it may be done in larger, more focused or aggressive ways to target any opposition with strategic confusion.

The broad outline follows, describing changes in patronage distribution and structural mechanisms, beginning with the executive personnel elements, and then legislative and judicial aspects in turn.  Further posts will elaborate each of these areas in their more detailed operation and consequence.

Patronage as Personnel Redistribution

The administrative state cannot be done away with wholesale, but it can be sent away — retail. The mechanisms are already in the Constitution.  Inter-operation of Art. I, § 8, Cl. 15 & 16, and Art. II, §2, Cl. 1 allows law enforcement personnel to be seconded to the States.  A strict observance of separation of powers – taking Humphrey’s Executor broadly and deeply – allows quasi-legislative and quasi-judicial agency personnel to be shifted into the respective coordinate branches, removing their “quasi-” labels.

  1. Federally funded law enforcement officers (legally distinguished from “Officers of the United States”), are supposed to be under State appointments, and under ordinary State administration according to the rules established by Congress, under Article I, §8, Cl. 16. States will have a say in local priorities of federal enforcement by having appointment and administrative authority over new law enforcement personnel, also available for their own enforcement (and without offending the anti-commandeering principles of Prinz).
  2. Quasi-judicial personnel of the federal agencies may be ordered to report to various Courts as available deputy magistrates or clerks of the judicial branch. The judiciary gets legally trained personnel that will allow it to clear and more efficiently manage crowded dockets;
  3. Quasi-legislative rulemaking staff may be seconded to congressional and senate staff as available legislative clerks. Legislators get more direct control of (and more accountability for) truly legislative rulemaking (and the favors that flow from it), and with more staff to manage it;

Executive Redistribution:

  1. Observe that the “militia” in its civil operation “… to execute the laws of the Union…” in Art. I, § 8, Cl. 15 of the Constitution is simply what we call “law enforcement.” Below the level of senatorially confirmed officers, federal law enforcement officers are not “Officers of the United States.” Steele v. United States, 267 US 505, 508 (1925).  Even deputy customs officers (i.e. – tax collectors) fall in this same category. They are Constitutional officers, though: “officers of militia.”
  2. Under Art. I, §8, Cl. 16, officers of militia are appointed by the States; Congress can provide (i.e. – pay) for them, decide rules for their training and calling forth, but they are left to the ordinary authority of the States “according to the discipline prescribed by Congress.” Their appointments can be redistributed back to the States, and the permanent “calling forth” of these officers into centralized federal agencies can be ended.
  3. The President and State political authorities may bargain on local priorities of federal enforcement in their respective localities. Militia officers may still be “called forth” into “the service of the United States,” but circumstantially, and not permanently. Otherwise, they would be left in the hands of State officials, per the Constitution;
  4. With appointment authority and day to day administration, States obtain powerful influence over localizing federal enforcement priorities, changing the patronage calculations of centralized policies to local priorities, mediated by local political interests.
  5. Selectivity in carrying the reform forward is itself a form of patronage supporting reform among state political establishments. Piecemeal, wholesale or in whatever way politics seem best served, these officers can be placed at the ordinary disposal of the States for their own local priorities for enforcement.


Quasi-judicial Redistribution

Observing a strict separation of powers, the President can properly deem “judicial power” to be beyond his Constitutional authority.  So the judiciary gets a political payoff too, and by a similar Constitutional redistribution of personnel:

Quasi-judicial officers exercising magisterial judicial functions may be directed to report – with their fully-funded positions pinned to their backs — to the Chief Judges of the several Federal District and Circuit Courts available for assignment and regular duties within the judicial branch as deputy magistrate officers or law clerks, as the judicial officers see fit to assign them.

  1. The order and precedence in which reassignments occur may, of course, be circumstantially, and politically selective. One possible arrangement is pool of specialist law clerks or deputy magistrates to “ride circuit” assisting in specialty or complex cases, or just as temporary additional staff to attack high workload issues.
  2. Judicial deference doctrines do not apply to inferior judicial officers; more manpower means a much larger case load than current judicial staffing allows;

Quasi-legislative Redistribution:

The administrative state’s quasi-legislative rule-making personnel are also subject to Constitutional redistribution:


  1. Regulatory rule-making personnel may be given to respective legislative committees of jurisdiction, assisting these committees in their own legislative rulemaking proposals;
  2. This would end the unrepresentative rulemaking process under the Administrative Procedures Act – which does not apply to Congress. 5 USC §551(1)(A).
  3. With has sufficient, subject-matter personnel Congress can manage proposed rules for passage and presentment to the President to become actual law. Congress has much less taste for constant rulemaking bills than bureaucrats have for notice and comment periods – hence fewer rules, eventually.
  4. By selectively proposing key existing agency rules for Congress to make into law – the President drive needed political debate, and incrementally, un-legislated substantive law can end.


These ideas are merely a spring board.  Some may have use, some not.  Election horseraces change little by themselves.  For true Constitutional rehabilitation, a reform needs a strategy aimed at working patronage and the administrative state.  Without such a committed strategy– to make political patronage flow from Constitutional structures — it will fail.



Refederalist No. 7 — Structural Politics and Patronage: Redistribution and Retribution

Political aspiration might be motivated toward higher ends– but the means to get into such a position are necessarily the low tools of patronage:   redistribution and retribution.    In the present political arena, these products of government operations are the chief objects of patronage — favorable or unfavorable regulations, taxation or subsidies — but the teeth are in the enforcement.  There is  an alternative way of approaching that patronage.  Let the very administrative instruments of reward and punishment become the rewards to be given — in themselves — to other political actors within the state-federal system and not merely the political products of what they deliver in operation. Reward them with the fishing boat, not just the fish. Craft a politics around redistributing the government’s agents — and not just the political fruits of their labors.

We have discussed the fundamental nature of politics as patronage — the ability to gather together and both reward friends, and punish enemies.  While relative sophistication and nuance may accompany such efforts, it simply disguises and diverts attention from the essential import of what politics is — always has been — and always will be.   Politics functions on few principles other than alliance and enmity.

The principles to be applied in this examination do not aspire to any greater source of motivation than the lowest of the low common denominators of political intrigue.  Indeed, the principles set out here are devoid of any ideological or policy aspiration — apart from the bias toward structural federalism, drawn from the Constitution itself.  In other words, the import of what patronage may be in view, and to whom it is intended to be awarded — favorably or disfavorably — is not material at all.

Under current political thinking, some patronage is still handled by explicit legislation — but agency government makes most legislation simply an enabling means to the political end of agency-drafted rules  and enforcement actions.  Woodrow Wilson’s outline, perceived in utero as laid out in Congressional Government  back in 1885, foresaw the centralizing tendency in the ways the politics was driving the federal government.  It has now been essentially achieved:

The plain tendency is towards a centralization of all the greater powers of government in the hands of the federal authorities, and towards the practical confirmation of those prerogatives of supreme overlordship which Congress has been gradually arrogating to itself. The central government is constantly becoming stronger and more active, and Congress is establishing itself as the one sovereign authority in that government. …

Congress is not only to retain the authority it already possesses, but is to be brought again and again face to face with still greater demands upon its energy, its wisdom, and its conscience, is to have ever-widening duties and responsibilities thrust upon it, without being granted a moment’s opportunity to look back from the plough to which it has set its hands.  The sphere and influence of national administration and national legislation are widening rapidly.

Mindful of these trends, now fulfilled, Wilson saw the Constitutional counterweight in the States being abandoned by the politics. Thus, he called for a professional and politically accountable  counterweight — within the central federal structure, on the British political minister/civil service model — a permanent civil service, led by politically accountable party-government :

They were conscious that the entire weight and responsibility of government rested upon their shoulders, and, as men regardful of the interests of the party which they represented, jealous for the preservation of their own fair names, and anxious, consequently, for the promotion of wise rule, they were naturally and of course the first to advocate a better system of appointment to that service whose chiefs they were recognized to be. They were prompt to declare that it was the “duty of the executive to provide for the efficient and harmonious working of the civil service,” and that they could not “transfer that duty to any other body far less competent than themselves without infringing a great and important constitutional principle, already too often infringed, to the great detriment of the public service.” They therefore determined themselves to inaugurate the merit-system without waiting for the assent of parliament, by simply surrendering their power of appointment in the various departments to a non-partisan examining board, trusting to the power of public opinion to induce parliament, after the thing had been done, to vote sufficient money to put the scheme into successful operation.

And so he proposed to imitate that manner of ministry government  through our own administrative agencies, which he played so much a part in framing:

The government of a country so vast and various must be strong, prompt, wieldy, and efficient. Its strength must consist in the certainty and uniformity of its purposes, in its accord with national sentiment, in its unhesitating action, and in its honest aims. It must be steadied and approved by open administration diligently obedient to the more permanent judgments of public opinion; and its only active agency, its representative chambers, must be equipped with something besides abundant powers of legislation.

We are the first Americans to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our own institutions as compared with the systems of Europe; the first to think of remodeling the administrative machinery of the federal government, and of forcing new forms of responsibility upon Congress.  …

But that high ideal of Wilsonian administrative agency government by permanent experts was soon captured by the low politics of a the new age of centralization, which he himself assisted, having been persuaded that the States were destined for practical political oblivion.

Manifestly the powers reserved to the States were expected to serve as a very real and potent check upon the federal government; and yet we can see plainly enough now that this balance of state against national authorities has proved, of all constitutional checks, the least effectual. …

So we see that, even in Wilson’s idealistic eyes,  the very purpose of the “meritocratic” civil servant model of the British government (and now our own agencies)  was never the dispassionate aspiration for “good government.”   It was in fact the narrow and self-interested party-political expedient of knowing that if one meant to prevail politically, people whose chief talent was only their political reliability would not necessarily be reliable to make those policies actually work.  That required professionals and experts.  Civil service government was born, and it was steadily adopted in modified form here as well.  In Britain, it aspired to and occasionally managed a scheme of professional permanency of capabilities with fairly clear and accountable alterations in political policies and parties.

What Wilson sought was a measure of the same accountable political party-government with alternation in office effecting reliable and accountable alteration and professional implementation of policy.   But in the course of things– we got none of what Wilson sought — neither the British Civil Service — nor yet politically accountable party-government, but something else.  Administrative agency government is immensely messier and in many ways more advantageous to the forces of patronage — with much more facility and flexibility, and far less accountability.  Like the Constitution was and still is, administrative agency government remains in service of  every low political end — and because of, not despite, its high guise of apolitical character.  And it works –politically, anyway.

Administrative agency government is simply enabled by legislation authorizing areas of agency action — which actions are not typically directed in more than aspirational terms by the legislation — except at the outlying margins.  Federal administrative agencies now handle most patronage for the political actors both within and outside the agencies, but indirectly and in many respects as far as the politics goes , unaccountably.  It distributes favorable or unfavorable treatment in the drafting of regulation, interpretation or application of legislation, subsidy or discretionary enforcement of law.  Most patronage now operates therefore by distributing — or denying — the products of government ‘s operations.  Political deals are therefore framed around those products and the means to get them distributed to political favorites or denied to political enemies.

But the party-government of Britain,  and sought here by Wilson– in addition to its theoretical aspect of visible political accountability — was essentially dealing with direct and explicitly political transfer of the  instruments of patronage themselves.   In Britain, the products of government operations are only the secondary objects of patronage — the key prize is to control the ministries, from which all else flows.  It is in this change of our political perspective where we will find rich ground to put in our spade.

We will now commence to frame a new politics about redistributing the administrative agency functions of the federal government to the States as the direct objects of political patronage.    By causing patronage to operate on the very structure of administrative agency government, we incrementally increase politically functional federalism — and reduced the centralization accurately foreseen by Wilson.   It would seem daunting — but it is really much simpler than it may seem.   As we shall see, to the politically operative mind, it opens a universe of possibilities never before dreamt of.

And we now move from our consideration of high policy and law — to begin our discussion about political dynamics in earnest — and with the aspect that we have now seen as being plainly out of line with the Constitution’s structure of enforcement powers,  federal law enforcement officials — or as Hamilton would say it — our “select corps” of the Militia.


Refederalist No. 6 — Appointments, Disappointments and Structural Federalism

Now we properly understand the origin and development of federal law enforcement officers and their place in the scheme of the Constitutional text.  The Appointments Clause of Art. II Sec. 2, which we have seen does not apply to them,  is nevertheless both a structural and an operational provision of the Constitution.   As the Supreme Court has reminded just recently (Bond v. U.S., 564 U.S. 9 (2011) — structural matters in the Constitution have teeth even when raised by individual citizens seeking to give them legal effect.  In this post we shall examine another Appointment Clause –which does apply to our federalized law enforcement/militia in their civil role “to execute the laws of the Union.”  And in applying this understanding practically, the teeth of a new political dynamic will begin to show in the posts to follow — when such provisions are used not for their legal effect, but their political effect.

The Appointments Clause for Article II “Officers of the United States” and their “inferior officers”  has been a recurrent subject of constitutional controversy in the advent of various forms of administrative and “independent” agencies as to the source and manner of their appointments — and more particularly, as we shall see, on the topic of our interest — in their “dis”-appointments, or removals — from office.  The result is a very complex and mixed bag of legal principles, and contending judicial theories about the interplay and balance of powers between the branches of the Federal government.  Mercifully — we need not dwell upon those here, except to note that the very “murky” nature of those disputes has given rise to the very politically opportune functions now served by administrative agencies as the instruments of proxy patronage in the political game according the “rules” as now understood.  A similar observation may be made regarding to the appointing authority for law enforcement officers under the Constitution, and a similar “murkiness”  allowing for political opportunism will provide the playing field we now examine more closely for new political “rules” and a fresh political game of shifting patronage back to the States — simply by using these structures as set forth in the Constitution.

We begin again with the two related conclusions of the Supreme Court just noted in the previous post:

“The deputy marshal is not in the constitutional sense an officer of the United States, and yet marshals and deputy marshals are the persons chiefly charged with the enforcement of the peace of the United States, as that is embraced in the enforcement of federal law.  …   [W]ho can doubt the authority of the President to make and order for the protection  … a sufficient guard whether it be by solders of the army, or by marshals of the United States, with a posse comitatus armed and equipped…”   In re Neagle, 135 U.S. 1, 68, 69.

“[W]e find that this Court in consideration of the context has sometimes given [the word “officer”] an enlarged meaning and has found it to include other than those appointed by the President, heads of departments and courts. The emphasis of the words of description [in the statute] is really on the limitations that the persons designated shall be one ‘duly authorized to enforce or assist in enforcing any law of the United States.’  … The same thing may be said of deputy collectors of customs.“   Steele v. United States, 267 US 505, 507 (1925).

We just noted previously that this “enlarged sense” refers equally to “deputy marshals” as to “deputy collectors of customs,” who are now “special agents,”  and so we capture the sense as well as the common terms applying to all federal law enforcement officers.   The Appointments Clause of Article II applies to “inferior officers”  of the United States who are appointed by heads of Departments, et al., and yet that appointment authority does not apply to these enforcement officers, as the Supreme Court has plainly stated, though it does not make their appointment unlawful.

But if the sense of “officer” must “enlarge” beyond the Article II Appointments Clause, we must yet beg the question — to what clause has it enlarged to attach itself ?   In a Constitution of limited powers, we must determine the source and authority of their appointments within the confines of the Constitution.  Thankfully, we need not look too far.  There are only three other Appointments Clauses  in the whole of the Constitution.  First, there is the appointment  by a State of an interim Senators upon a vacancy in Article I, Sec. 3, Cl.2.   Secondly, there is the Appointments clause of State Electors for President, Article II, Sec. 1.  Both of these are plainly inapplicable, and neither deals with “officers”.   Lastly, there is the Militia Appointments clause of Article I, Sec. 8, Cl. 16:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;” 

So, the appointment power in the Constitution for officers charged “to execute the laws of the Union” and who cannot be Article II “inferior officers” of the United States, is reserved to the States.   Congress has plenary power over the organization,  arming and disciplining the Militia, for this and its other purposes, but not the power over the Appointments of the Officers of militia– this is explicitly reserved to the States.  And as well, Congress is not permitted the “Authority of training” them, which is also left to the States. And Congress only has the power of “governing” them when they are “employed in the service of the United States.”

Now we have a quite a conundrum in view of our current practice in the administration of federal law enforcement.  As matters stand, we have a number of federal law enforcement officers whose ongoing “employment in the service of the United States” is not in question.  But  their appointment, training and ordinary governance are most irregular in light of the text and history.  Now we come to the core of the federalism question.   And unlike the constitutional challenges that have come from the inter-branch appointments controversies  over various administrative and independent agencies and their debated and debatable mixed powers — we have here an explicitly mixed-power, State-federal institution — calling on elements of both Federal and State authority to operate and in some manner of both cooperation as well as discretion.  In short, what we have here is not only a constitutional issue, and a structural one,  but a political issue as well — and a political issue written into the Constitution — like the mixed system of Federal elections.

Lest we imagine that this is inconsistent with the Founder’s purpose, let us return again to Hamilton but in this instance his remarks in Federalist 27, which draws a parallel between the mixed electoral Federal-State electoral system and that of ordinary law enforcement as securing a more organic Union and respect for the rule of law — law that is the product OF the people and applied BY the people.

…[T]he extension of the spheres of election will present a greater option, or latitude of choice, to the people;  … It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members…. by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws.

In referring to the “ordinary magistracy of each” “individual citizen” and in the context of execution of the laws, Hamilton is speaking of the militia put to service in the posse comitatus, by Federal ( or State) officers  as he shortly thereafter  details in Federalist 29, discussed above.  “Magistracy” in the context of execution, then as now, “signifies the body of officers whose duty it is to put the laws in force.”  Merriam-Webster Dictionary.

Then, as now, any citizen – not just the select corps of sworn officers — could arrest for a violation of the peace in his sight and bring the offender before a judicial officer to be examined and charged if he did find probable cause that the law was broken.   And in this manner Hamilton refers to the militia– the people, armed — as the ordinary recourse to put the laws in force, both for the States as they were, and, — more importantly for Hamilton’s argument for the Constitution’s ratification, and our point in consideration — for the structural plan of the Federal government’s ordinary means of execution as set forth and intended by the Constitution.  And on this basis and with that premise, the Judiciary Act of 1789 gave force to those plans with the establishment of United States Marshals as Officers of the United States with the posse comitatus power to deputize and command the aid of such citizens as may be needed in the conduct of their offices to execute the laws of the Union.

And on this premise we may now consider the political ramifications of the system of law enforcement as it is assumed to presently exist, and the system as the Constitution contemplates:  A politics framed around changing the system of political patronage at a foundational level of its legal enforcement, and without challenging particular policies and sacred cows that the system of law enforcement presently enforces.


Refederalist No. 5 — Deputies, Officers, Agents and Objections

As we have seen, professional “law enforcement” officers, in our present terms, are simply the outgrowth of Hamilton’s anticipated “select corps” of militia  described in Federalist 29, but in their civil role:  “to execute the laws of the Union”as posse comitatus.   This is not widely understood.  As a result, objections flow from the unfamiliar origins of something that people nevertheless feel to be very familiar to them in their daily lives.  This misunderstanding of  “what we think we know” must be addressed.

The history shows that the professionals we now call “law enforcement,” form the “select corps” of militia addressed by Hamilton in Federalist 29.   We will consider in further posts, the implications of this point in the current state of affairs, and the formal authority by which they perform their functions.  We turn first however, to some objections to the characterization of law enforcement as militia, drawn from this misunderstanding of the development of the present situation.  Things that we think we know, form powerful barriers to inquiry.  These are not trivial misunderstandings. They hold a powerful grip on many minds that operate in political circles.

First, and the most typical objection, is just pointing to current practice and declaring that “everybody knows” that law enforcement and police are not “militia.”  Quite frankly, the operative concept of militia has so long been out of public thinking, this most simplistic objection is quite often the only one needed for a political actor to reject the premise, without more.   The history itself is clear enough, but the change in terminology used confuses the issue. The common term “police officer” is less common in reference to federal law enforcement — the terms now used generically for federal agencies involved in “law enforcement” are, in order of historical development: “deputy” and then, much later, “agent.”

And so we change the names and we tend to forget that those things have not changed.  This change of terminology is the flipside of an observation made by Woodrow Wilson in 1885 in his book Congressional Government — we also sometimes keep names — even as we change what they actually are– so as to better pretend that they have not changed:

It is a commonplace observation of historians that, in the development of constitutions, names are much more persistent than the functions upon which they were originally bestowed; that institutions constantly undergo essential alterations of character, whilst retaining the names conferred upon them in their first estate; and the history of our own Constitution is but another illustration of this universal principle of institutional change. There has been a constant growth of legislative and administrative practice, and a steady accretion of precedent in the management of federal affairs, which have broadened the sphere and altered the functions of the government without perceptibly affecting the vocabulary of our constitutional language. …

By changing our terms to “law enforcement” we conveniently “forgot” its organic development from to the hue-and-cry, the posse comitatus, the character of deputies, and the civil role of the Constitutional Militia “to execute the laws of the Union.”

The oldest Federal “law enforcement agency” instituted by the United States is the U.S. Marshals — enacted in 1789 — and who possess the same posse comitatus powers as sheriffs — the quintessential power of “calling forth” people armed to enforce law.  This is the power governed by Art. I, Sec. 8, Cl. 15 of the Constitution, where Congress has power “to provide for calling forth the Militia to execute the Laws of the Union.”   From this power of “calling forth” comes the word “deputy,” as a description of a subordinate officer who is engaged to aid the Marshal proper in enforcing the law.  The Marshal’s are the clearest historical connection to the militia powers, because the names have not changed, and preserve their essential continuity of meaning and purpose.  They were not salaried by Congress until 1896, and until then were provided fees and expenses for services rendered.

The other “oldest” law enforcement agency is the U.S. Postal Inspectors.  Though its enabling legislation in 1792 was 3 years later than the Marshals, its continuity of service predates  not only the Constitution, but also the Declaration of Independence.   The Postal Service in fact coined the term “special agent” in place of “surveyor” in 1801 for its officers who policed crimes involving the mails.   That terminology replicated itself among other subsequent federal agencies charged with law enforcement tasks, notably the Secret Service (1865), and the “Special Agency Service” of customs enforcement officers  (1870).   The Postal Service  later distinguished its officers (from 1880) with the term “inspector.”  Much later came the FBI  (1908).   Now we have many (~40) other alphabet-soup agencies, created mainly during the 20th c., each with their own “select corps” of armed enforcers, now totalling about 120,000 armed officers.  For comparison, the combined State and local law enforcement complement totals about 765,000 sworn officers under arms (2008).

Federal law enforcement officers other than the Marshals service thus typically go by the name of “agent” instead of “deputy.”  This appears to be more different than it is.  Both “agent” and “deputy” mean a person who acts on behalf of another, and with the power properly belonging to the other.  In both cases, the power belongs to the publicly appointed “officer” on whose behalf , and in whose place they are “called upon” act, and whose authority they are given while acting in that capacity.

It is black letter law that the deputies and ordinary enforcement agents of the Federal government are not themselves “Officers of the United States,” within the meaning of the Constitution:

“The deputy marshal is not in the constitutional sense an officer of the United States, and yet marshals and deputy marshals are the persons chiefly charged with the enforcement of the peace of the United States, as that is embraced in the enforcement of federal law.  …   [W]ho can doubt the authority of the President to make and order for the protection  … a sufficient guard whether it be by solders of the army, or by marshals of the United States, with a posse comitatus armed and equipped...”  In re Neagle, 135 U.S. 1, 68, 69.

Deputy Marshal Neagle was not the U.S. Marshal proper.  He was only a deputy.  In upholding his authority as an “officer” authorized to “enforce the peace” the Court cited the statute that authorizes the posse comitatus power in the Marshals — same as the sheriffs of the several States:

“The marshals and their deputies shall have, in each State, the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such State may have, by law, in executing the laws thereof.”   28 U.S.C.  §564

There can be no doubt.  The Marshals call out their deputies by invoking the civil role of the militia as posse comitatus “to execute the laws of the Union”  in accordance with Art. I, Sec. 8, Cl. 15.

The second objection is more considered and more formal.  Establishing that ordinary law enforcement officers are not themselves “Officers of the United States”  begs the question, “What kind of officers are they?”  From what source do federal law enforcement agents derive their deputed authority?  As the Supreme Court said, the law enforcement deputy or agent must be classified as among  “the posse comitatus, armed and equipped,” which is simply another way of saying —  “militia.”

“The second objection — like the first — assumes that the unexamined understanding is adequate — just not thought-through.   The assumption is that law enforcement agents or deputies are simply  inferior “Officers of the United States.  If they were then they can be properly appointed by the President, the  heads of Departments, or the Courts, under Article II, Sec. 2, whereby “Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”   The assumption is that such enforcers of the law are properly appointed under the authority of the Departments in which they function.  Though this involves more reasoning from the text of the Constitution,  ultimately, it is just as mistaken as the more commonplace view.

“[W]e find that this Court in consideration of the context has sometimes given [the word “officer”] an enlarged meaning and has found it to include other than those appointed by the President, heads of departments and courts. The emphasis of the words of description [in the statute] is really on the limitations that the persons designated shall be one ‘duly authorized to enforce or assist in enforcing any law of the United States.’  … The same thing may be said of deputy collectors of customs.”   Steele v. United States, 267 US 505, 507 (1925).

So it is plain that the Article II appointment powers for “inferior officers” listed by the Court are expressly excluded by the Court from operating in the cases of ordinary enforcement agents such as deputy marshals and deputy customs officers or special agents.  On this conclusion alone, the “conventional” assumption founders, and some other appointment power needs to be located in the Constitution for these  lawfully operating “officers” in the “enlarged sense.”

A more involved version of the second objection usually then ropes in the “necessary and proper” clause for Congressional authority to expand granted powers — to include lesser enforcement “officers” or agents in this “enlarged sense,” who are not “Officers of the United States” as such. But the Appointments clause does not grant Congress power to allow for appointing inferior officers to do things that the heads of Departments are not themselves charged with doing.  The concept of agency does not contemplate an agent exercising any power that the principal lacks.

The heads of Departments are charged to provide an “opinion in writing” to the President when requested — policy functions only.  Departments are not conferred the function of law enforcement powers or duties “to execute the laws of the Union”  set forth in the Constitution.  Without themselves being conferred the power “to execute the laws,” the heads of Departments have no law enforcement power to depute to their deputies and agents that they may be duly authorized to appoint.

The enforcement power of the Constitution is not located with the Departments, according to its text.   The power “to execute the laws of the Union” is vested by Art. I, Sec. 8, Cl. 15, in the Militia,and in the President, its Commander-in-Chief, subject to some other provisions on the role of the States and limitations on Congressional authority over it (which is the subject of the post immediately to follow).   In contrast to the lack of enforcement authority in the described functions of federal Departments under the Constitution, the Court’s analysis of the “enlarged meaning” of “officers” in Steele sets forth the historical civil functions of the Militia to execute the law in all but the name of the institution.   The only other appointment power for such officers in the Constitution is for Officers of the Militia (Art. I, Sec. 8, Cl. 16).  And the only constitutional appointees expressly charged by the Constitution “to execute the laws of the Union” — are those appointed to the Militia.

Once we reach this point, the second objection devolves to the first one.  But the facts remain.  All law enforcement officers (including federal law enforcement) developed historically from the civil role of militia as posse comitatus — and in its present professional character, as Hamilton’s anticipated “select corps” of militia.  So the appointment and operative authority under the Constitution for law enforcement officers charged with actually enforcing  U.S. laws runs through the Militia clauses.

Now we will turn to the implications of this observation for structural federalism and refederalizing the politics of the country.

Refederalist No. 4 — Sovereignty, Subdivision and Posse Comitatus

The role of what we now call “law enforcement” has been little examined in political or constitutional terms.  However, the history of it and the constitutional text places the People themselves in an active and direct constitutional role with both  the Federal government, and the State governments in doing law enforcement, or as the Constitution says “to execute the laws of the Union.”   Recognizing this history and deploying, politically,  the bit of the constitutional text that has been largely forgotten, fundamentally alters the assumed ways that the federal administrative state has gone about executing the laws of the Union in the past 70 or so years.

The Constitution is foremost a structural document. For at least 100 years, and perhaps as long as 150 years, centralization of political structures been the operating bias in our political system. The assumed position in most policy formulation today has become that the federal government has a presumptive role to play in almost everything.

Despite efforts, no durable political strategy to restrain, much less reverse, the ratchet-like centralizing effect of this bias has appeared. Politically, the Progressive movement that developed on the heels of Reconstruction steadily centralized and rationalized the policy of law and legal enforcement. This was a structural cause of political changes driven by a dynamic of political patronage that reinforced that centralization.

The resulting one-size-fits-all presumptions fit none terribly well, if any at all. The lowest common denominator in national affairs, it turns out, is very low indeed. This bias progressively expanded centralized rule-making and enforcement into the Federal Leviathan we have today — which can no longer support its own fiscal weight — but still has not ceased growing.

Time and again the Judiciary has proved toothless to curtail expansions of the administrative state. Most recently we saw this in the massive expansion of administrative power into the healthcare decisions of all Americans, which was upheld by a nominally conservative Chief Justice. President Reagan showed that the Executive branch alone cannot effectively use the administrative state to undo the administrative state. (Or, perhaps, as Jesus observed, “Does Satan cast out Satan?”)

Speaker Gingrich and the ‘94 Republican House showed that the Legislative branch also cannot undo the administrative “fourth branch.” Congressmen all depend on administrative agencies functioning as a patronage proxy for their political survival. Who will watch the watchmen? It seems like we might need a “fifth branch” of the Federal government to control the “fourth branch” of the Federal government, but that would simply expand it yet further in the name of “reform.” Et cetera, et cetera. The problem seems unsolvable, short of collapse — which may yet happen. But, perhaps not.

The present patronage system uses the executive administrative agencies as political proxies. Indirectly controlled and directed by congressional oversight and budgeting, they act in ways that allow patronage to be dispensed — to reward friends and punish enemies — and without direct risk of politically delicate quid pro quo criticisms. This political patronage will occur, and always occurs in one way or another in every political system. It is not the thing to get rid of — it is the thing that is to be used. Now it flows through these channels outside the Constitution. Flow in a channel that leads outside the Constitution can be diverted so it will flow back into the Constitutional structure.

The political art of patronage is to understand this flow and how it may be dispensed to thirsty favorites or to drown opponents. The political art of the Constitution is to understand how to keep patronage within its structure, and how to divert it back once it has been diverted away. Only a change in the flow of the political dynamic (not the institutional or Constitutional structure) can durably alter this situation.

The Framers, of course, divided sovereignty between the several states and a federated central government– but they were not sanguine about the prospect. Justice Anthony Kennedy described the American federal form of government as an “attempt to split the atom of sovereignty. ” While a striking metaphor for the atomic age — the sense of harnessing or unleashing immense power is quite contrary to the intention of those who designed that structure. They meant more to dissipate such an immense power — not at once try to unleash its restraints and yet try to harness it for greater effect.

If we observe closely, however, we find the division of the sovereignty was not merely into two pieces –but in fact, further subdivided. There are several iterations of division into branches and sub-branches, with yet lower levels of differentiated functions. The images of our networked age perhaps lend us the better metaphor for this purpose than atom-splitting. Of course, in the Legislative arena — power is split between two Houses. The central legislature also has only a limited set of powers– the remainder are reserved to the States and to the People in the Tenth Amendment. In looking at the further at the subdivision of this networked arrangement, the “People” need to be more deeply considered in their functional role as it intersects the respective branches of Constitutional structure that we are more familiar with. Voting is not the only role of the “People” as a Constitutional body, and though this realization has been lost in popular understanding, the knowledge is not without political consequence — nor above political exploitation.

Fortunately, there may already be one aspect of these divisions that pertain particularly to “The People” that we have overlooked. The answer lies in defining what the administrative state is under the Constitution. This is a longstanding and knotty constitutional problem. If we can identify the Federal administrative state within the Constitution a way that can alter its political functions then we have a sluice gate to divert the patronage back into the Constitution from these extra-constitutional channels. Once shifted, the flow itself will deepen and strengthen the channel.

The federal administrative state is, among other things, a collection of law enforcement agencies. Even acknowledging their quasi-legislative rule-making functions, their political utility largely depends upon that law enforcement function to give it political effect. The instruments of enforcement are chief among the benefits of patronage that aid political allies and punish political enemies. Other patronage functions include administering direct and indirect subsidies, and differential taxation. We will primarily discuss enforcement – but from that we will eventually come to aspects of subsidies and differential taxation.

“Law-enforcement” is a curious phrase and of fairly new vintage. It obscures more than it reveals. “Police” tells us but little more. What is “law-enforcement,” and where does it fit within the Constitution? The answer to this question is the tool that will operate the sluice gate diverting patronage. One must recall the history of this function. Professional police are the invention of the 19th century in Britain and the U.S. Professional police developed from the institution of the watch, which itself was an outgrowth of the “posse comitatus” — the power of civil officers to call out the “power of the county” — the armed subjects of the Crown– in aid of and to execute the law.

It its context as further developed in the Constitution, however, Alexander Hamilton gave us the answer to our question in The Federalist, No. 29:

“The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. … a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, … the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color,… What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? … It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. … Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; … But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that … the attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need.”

Law enforcement under the Constitution and laws of the United States is derived from the militia power and its necessary and proper power, continuing the common law posse comitatus asan adjunct power to execute the laws. Posse comitatus is the power to call out, call away, or “call forth” citizens armed to aid the law. (Latin: deputare = lit “to cut or prune away (from a larger body)” From this we derive the word “to depute”, and from which a person so “called away” is often called a “deputy”. In most States, still today, it is punishable for a citizen to refuse the demand of an officer to assist him in the enforcement of the law, and in every state it is the citizen’s legal duty, whether or not punishable, to assist the officer of the law when called upon.

All police and law enforcement personnel enforcing federal law the United States are thus nothing more nor less than the “select corps” of militia described by Hamilton in The Federalist, No. 29, deputed for public service in that capacity. And the Constitutional role of the People here is clear. “The militia, when properly formed, are in fact the People themselves, … all men capable of bearing arms;…”— The Federal Farmer, 1788; “I ask, sir, what is the militia? It is the whole People, except for a few public officials.” — George Mason, Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788.

The flexibility of this instrument cannot be denied, for as Hamilton observed above: “What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen.” Indeed, our present forms of enforcing laws through complex regulatory agencies would not have been foreseen. We shall here extend the realm of political possibilities in considering present and alternate “plans of regulation” that may more reasonably fit the Constitutional regime, and consider their uses as practical political tools

The full political implication of this simple historical observation may be surprising. Continuing, we will look to the text of the Constitution, noting the points of departure from that regime in current practice. The we will explore political opportunities presented by altering practice to resume and follow the Constitutional regime. will occupy much of the numerous points to follow.


Refederalist No. 3 — Caging Patronage: Structure not Policy

Patronage can’t be done away with; it just IS.   We so loved the Constitution that we tried to keep it pristine and divorced from common, tawdry political patronage.  But because we put patronage outside, politics left the Constitutional structure.   The politics followed the patronage.  Putting patronage back into the structure will draw politics back within it.

Political patronage is dispensed through the three nominally separated federal powers.   Legislative.  Executive.  Judicial.

We have five channels of action by which patronage can be administered:

1.  Rule-making ;    2.  Enforcement ;  3.  Subsidy ; 4.  Taxation  5.  Taking

When the separated powers lose their definitive character, the standards applicable to each cannot be surely applied.  We cannot reform such a system with itemized corrections.  Itemized corrections require knowing, on any given item,  what has been done, how it is wrong, and how it must be corrected.  When it may fit in any of the three categories of governmental power — no one set of rules can be brought to bear.   Legal limits under the Constitution fencing these powers have long been nearly a dead letter as far as constraining  political action in service of patronage interests.  More of the same won’t change that.

Reform efforts addressing the problem of patronage have typically attempted to limit or root out political influence.  Recurring campaign finance reform is a strong expression of this.  So are freedom of information laws, and the like.   So are the Congressional “ethics” rules.

But none of these get after the basic problem  — the Constitutional categories are so blurred that all of them (or none) can be applied to address any issue. Nothing is clear.  Patronage now operates effectively outside the constitutional system — using whatever elements of that system it needs to give an appearance of fitting the text for the moment and for the purpose.  The Constitution becomes so much window dressing, or stage props to fit the political dialogue in play.    There is no functional reality to much of it — it is one large pantomime theater — where we all play along with the farce of laughable casting, gross overacting, and bad costumes.   The only purpose in the play is to get the participants to pay to attend.

To attack this problem, the political dimension must be handled functionally. The functionality within the Constitution must be used to draw political operations back within it — not necessarily in ways that are now familiar — but in ways that are faithful to the text and the history of its political and legal uses.  The goal is to bring more and more of the political weight and momentum back within the Constitutional structure — and willingly so –without creating political reactions that resist the restoration.

The first patronage function above is rule-making — but rule-making is inherently harder to grasp in the terms we are concerned with here.  We will begin with the somewhat more straightforward matter of enforcement.  These functions are now increasingly centralized — allowing leveraged political payoffs because of increased scales on which any given action  achieved produces its effects.  This can be made an advantage to reform rather than its obstacle. Legal categories of divided powers once served to oppose and limit  their abuses. –But political forces intentionally  blurred  the categories to maximize flexibility of their use for patronage. This also can be turned to serve reform rather than stifle it.

The system as it stands effectively lets political actors outside the system compete for the results of government functions provided by political actors within the system.   A subtle change can lead to a radically different political patronage paradigm.  Redistributing the government functions themselves — but among structural elements of the federal system, including the States.

Legal categories and operative policies do not work to control patronage trading on them.  Legal categories are politically managed and they fail in large measure from political change.  Operative policies are the stock in trade of most patronage. Policies change with politics and are no source of stable control over patronage. Structural politics are required.

Political actors outside the system focus on the results of policies. Political actors within the system focus on occupying the structures that deliver those policies.   Structural politics use the functions themselves as objects of patronage — redistributing the entire structures that deliver them  — but among the political actors within the system.  Redistribution of functions leads political actors outside the system to follow those functions and support the new sources of patronage — and thus politically reinforce the redistribution of those functions.

Once we establish a clear set of principles for political redistribution of government functions themselves at a structural level — in accordance with and not in violation of the Constitution — we will have a key to much of the list of other powers and sources of patronage that remain, and can deal with each of them in turn.


Refederalist No. 2 — Political Patronage and its Malcontents

The increasingly centralized federal system blurs legal categories under the Constitution, making it impossible to track political patronage, to control it, or to reform its abuses.

Everybody loves their political patronage, which everybody else hates.  No political system has ever existed that did not operate on patronage — though their objects and devices for handling it differed.  Patronage is quite simply the reason why we do politics — to get what we cannot get by our own means — using government tools to either punish or reward — for private ends.

Modern progressive policies rely on an ideal of expert, rational  administration — Platonic Guardians.   In those terms, political patronage can be nothing but a deviant aberration.  Under the rule of experts, explicit patronage is an interfering evil to be removed by whatever means necessary.  Most policies of reform in the last 100 years took this premise as foundation for their efforts.   But the desire to reward allies and punish enemies lies buried in human nature — and is not to be easily rooted out by rationalist controls.  And the desire to root it out is itself hard to rationally limit.   The history of the 20th century may be seen as the passage from unsuccessful removal of undesired human political tendencies to the more expedient removal of the undesired humans possessing them.

The Founding architects saw political patronage more dispassionately and more realistically. They aimed to harness these forces.  Much of the Constitutional architecture divides and separates governing activities in ways that allow for patronage — but require that its exercise not be easily concentrated or else easily offset, or its benefits difficult to deliver without broad consensus.  Most of the ways in which patronage is now distributed have evolved to use the expert-based regulatory and enforcement system itself to handle patronage indirectly that the system itself would attack if done directly.  The offsetting legal categories have become indistinct and intentionally ambiguous, and nearly impossible .

For instance,  the EPA writes rules, enforces rules, and adjudicates rules.  Its rule-making, its enforcement and its administrative adjudication functions are the subject of fierce political lobbying  — directly — and through Executive Officials and through Congressmen exercising oversight and budgeting authority over the agency.   Until recently, the EPA ensured the effectiveness of the results of such political efforts by denying people court access to challenge a rule or administrative determination without first complying with enforcement — or risk  disastrous daily fines.  Thankfully, this was overturned at the Supreme Court, but there are other examples, too numerous to mention — which serve to prevent challenges or to make politically determined “interpretive” rules stick without easy reversal or check.

Patronage has the two basic elements mentioned — rewards and punishments — but both of these have affirmative and negative modes.   The negative mode is in legal prohibitions.   When prohibiting — allies may be rewarded with leniency, or by exceptions, and enemies dealt with strictly, and without exception.  Similarly, when  making affirmative provision from public resources — allies may be given subsidies that enemies are denied.  Conversely, when it comes to gathering public resources, taxing and taking  can weigh more lightly or heavily —  as friendship or enmity dictate.

We have a number of channels of action through which patronage now flows:

1.  Rule-making

2.  Enforcement

3.  Public subsidy

4.  Taxation

5.  Taking (eminent domain)

The federal system has developed in ways that mix the legal categories of executive, legislative and judicial powers — and in all of these categories of action.  This means that it is difficult in the first instance to fix both responsibility for the result, as well fixing the basis or standard of action (executive, legislative or judicial).  It is hard to say in advance whether any decision was  proper or wrong, and thus whether it is a suspect product of patronage always remains highly ambiguous.   In other words, the system as it exists allows for providing patronage  — with a maximum of both political credit and plausible deniability.

Any reform must allow the credit and blame of patronage actions to be seen — but in ways that do not involve corrupt dealings with private interests.  The answer is not to try to remove yet more patronage from the system — a failed strategy if ever there was one. The solution is  to relocate significant elements of political patronage back within the system where it can be seen — and refereed.