Two very different authors whom we assigned in our summer institute both advocate adding branches to the traditional troika (legislative, executive, and judicial).* In general, a “branch” is a part of government with distinctive guiding principles and forms and functions appropriate to those principles. It has autonomous powers, checked by other branches. These checks are not only designed to prevent tyranny but also to promote various kinds of inter-branch collaboration for the public good.
The principle of division into branches could be carried further than it was in the US in 1788. Bruce Ackerman writes, “The separation of powers is a good idea, but there is no reason to suppose that the classical writers have exhausted its goodness. To the contrary.” He favors a powerful elected legislature, “checked and balanced by a host of special-purpose branches, each motivated by one or more of the three basic concerns of separationist theory.”
Here are my own top three ideas for new branches.
1. A regulatory branch. We pretty much have one of those already. Even though the US Constitution explicitly vests “all legislative powers” in the elected Congress, everyone knows that laws are also made by regulatory and administrative agencies. Ackerman advocates thinking of these agencies as their own branch.
I have written critically about the delegation of democratic responsibilities to appointed agencies and also against over-estimating the value of expertise, which is the trump card of bureaucracy. But it seems unrealistic and unwise to imagine that we can dispense with lawmaking administrative agencies in a modern economy. So perhaps the best course is to think of administrative agencies as part of a separate branch with its own virtues and principles but also with strict limitations.
The elected branches should not be able to interfere with administrative agencies in illegitimate and corrupting ways, e.g., with rampant earmarks, miscellaneous mandates, and patronage appointments. But they should be able–or even compelled–to review important value judgments and choices that the agencies make. Agencies should embody principles of professionalism and rule-of-law. That means, for example, that they should be required to codify their own decisions in consistent, transparent, and stable law rather than miscellaneous, ad hoc decisions. Courts should be able to review their procedures for adherence to these professional principles.
Note that some of this “reform” program is already embodied in the Administrative Procedures Act and case law, so all we need is to to think of administrative agencies as a branch and to tinker with the law accordingly.
2. An integrity branch. This is another suggestion of Ackerman’s. It is scandalous that we permit incumbent politicians to draw the legislative districts in which they will run for reelection; that we hold partisan votes for the secretaries of state who administer elections and decide where to locate voting machines (etc.), and that we allow private interests with financial stakes to fund campaigns. Many other countries have rigorously independent electoral commissions or agencies. The US version could be empowered to draw electoral districts, administer the vote, and subsidize qualified candidates with public funding (guaranteed by the Constitution or by a durable statute).
3. A reconstructive branch. This idea comes from Unger. It is aimed at the problems of sclerosis, corruption, entrenchment, and inertia–in the private and public sectors, local and national. Unger’s proposal is to let this new branch seize troubled entities temporarily, reconstruct them, and then let them go back about their business. Clear candidates for such reconstruction lately would include bankrupt Wall Street banks, bankrupt auto manufacturers, the state of California, and (due mainly to events beyond its own control), the city of New Orleans.
The obvious objection to this third proposal is the lack of democracy–a bunch of “suits” from Washington would be able to seize anything they wanted and revise it according to their pet theories. But that problem could be overcome with two provisions. 1) The reconstructive branch would itself be chosen in regular, competitive, popular elections for term-limited positions. 2) When reconstructing public institutions, the branch would be required to create fully democratic processes, not impose its own ideas. So both California and New Orleans would use popular constitutional conventions (or charter reviews) to design their new systems of governance. The process would be managed by the reconstructive branch, but the outcomes would be up to citizens.
*Bruce Ackerman, “The New Separation of Powers”, Harvard Law Review, 113 (2000): 642-729 and Roberto Unger, “Democracy Realized: A Manifesto” (pp. 263-77).