In one of my very early posts, COVID-19 and Emergency Powers, I warned of the “the danger to democracy of allowing a single person the unchecked power to make” certain government decisions, there the response to the COVID pandemic. The federal government and all state governments provide for “separation of powers” into legislative, executive and judicial to create a system of “checks and balances.”
The particular threat that was the subject of the earlier post was the exercise of emergency powers to deal with the COVID pandemic. My point there was not that it was not a serious situation or that any “particular responses to the pandemic (e.g., mask mandates, quarantines, business closures) should [or should not] be undertaken, but the danger to democracy of allowing a single person the unchecked power to make that decision.”
Slowly governors are giving up (or having taken from them) the extraordinary powers assumed in the early days of the pandemic. I hope that a debate about what constitutes an emergency and how long the executive’s ability to rule by decree during an emergency can now be considered without veering into the question of whether a particular response or mandate was the right thing to do.
The end of the various emergency declarations, however, does not mean that the threat caused by concentration rather than separation of powers is receding. We still have what is sometimes described as a fourth branch of government, administrative agencies. Although placed in the executive branch, they often allow for policy-making by career employees (for whom ever-increasing regulation represents job security) not responsible to the electorate and, more alarmingly, many are vested with both legislative (rule-making) and judicial (adjudicatory) powers.((Such powers are sometimes described as quasi-legislative and quasi-judicial.)) They can be judge, jury, and executioner all in one.
Take, for example, any of the large number of licensing boards that control entry into various occupations and processions. Typically there will be a small number of people who are appointed to the board by the governor as small-time patronage, but most of the actual decision-making will be done only upon the recommendation of paid staff (the really lucrative patronage positions). These board not only create the regulations to obtain a license and practice the profession or occupation, but they also bring charges against those who may have violated the regulations and then adjudicate those very same charges.
Licensing boards are not the limit. There are agencies whose function includes deciding disputes between private parties, and these have the authority to award damages and impose penalties.
Many of these disputes are the subject of hearings before the “administrative law judges.” Despite their title, ALJs are not judges, but they are essentially hearing officers employed by the Office of Administrative Law (OAL), an executive branch agency, who make a “recommended” decision which is then reviewed by the administrative agency that referred the case to the AOL in the first place. The agency head is perfectly free to reject the recommended decision and to replace it with one recommended by agency staff, represented by the same Division of Law that represents and advises the agency itself.
There is little effective check upon these agencies. While the Appellate Division of the Superior Court has constitutional jurisdiction to review their decisions, the courts impose an extremely deferential standard on this review. Not only do the agencies get to decide the facts (as long as there is almost any evidence to support their decisions), but the courts will even defer to the agency’s interpretation of the governing statute, which can change from governor to governor.
I will save for future posts taking a detailed position on how this system should be reformed, but it will likely include restoring most of the rule-making power to the Legislature (see the final paragraph of Redesigning the New Jersey Legislature) and relying upon the courts for adjudication.
Jay Bohn
June 10, 2021