In the book, To Run a Constitution, John Rohr advises us that the word “administration” is not mentioned once in the constitutions. Yet today, when we think of the American government we think of the bureaucracy that manages and implements (and sometimes establishes) many of the policies that run our country. Therefore when Richard Neustadt argued that the notion of the “separation of powers” is miss leading was because in the US we have separate administrative institutions sharing these powers. That is again to say, that today’s bureaucracy not only sets policy, it manages and implements it too.
We learn from Rohr, the notion of the “separation of powers” originates from the Federalist vs. Anti-federalist arguing over power, and finally suggesting that not one authority within the federal government should be omnipotent. Rather there should be a balance between the executive, judiciary and the legislative bodies. America’s Founding Fathers created the laws of checks and balances that could over-ride congress, the president and the judiciary’s roles in government.
Yet, the first problem framers encountered was to manage the separation of power within the Treasury department. They analyzed how the three separate powers could manipulate and influence its operations. This was the first administrative agency in which the framers needed to create direct lines of control. Ultimately, the framers nominated that congress, the most representational body of government, to control the bureaucracy through committee, which still exits today.
Woodrow Wilson, with his interpretive view of the constitution, established the politics-administration divide, making him the father of modern American public administration. In his 1889 prolific essay and subsequent lectures, Wilson proclaimed, “Administration was the most obvious part of government…which proceed the independent of legislation and even of constitution”(Rohr 68). He stated that the constitution is a political act but that administration predicates the good will of the people. This notion is what concerns Neustadt.
Furthermore with Wilson’s new deal programs in the plight of the great depression, created the largest expansion of government in US history. Therefore more emphasis was needed to be place on whether the “bureaucratic administration” separated itself from politics or not. Therefore if the administration was not separate from politics, it may be omnipotent to a particular issue. The courts and congress are highly involved in the administrative actions of most bureaucracies.
Frank Goodnow believed in Wilson’s legislative supremacy. The example provided in Rohr’s book was the fight over the establishment and implementation of policies within the Interstate Commerce Commission (ICC). Goodnow described how Thomas Cooley managed to regulate and expand the ICC while navigating the political games in Washington, which legitimized his work. Further work by the various agencies, legal battles and the like substantiate this work.
Ultimately the “separation of powers” question depends on whether the administrative-state blends the powers of constitutional legitimacy predicated on one’s belief in the separation of politics and administration and what type of constitutional review they take.