Why the separation of powers matters for racial equality

In high school, I spent hours hunkered at a library computer playing Sid Meier’s Civilization instead of working on the school newspaper. In the game, you could lead your own civilization from stone age to space age. You’d guide every detail about your burgeoning society–from their religion to their labor. You’d eventually cross paths with rival civilizations led by guys like Stalin, somehow attired in his Bolshevik uniform and holding a cigarette even in the Bronze Age; “Greetings from he who makes mortals tremble,” he’d say.

As I toyed with the fate of millions on the clunky library PC, H.L. Mencken had me pinned: “The urge to save humanity is almost always a false front for the urge to rule.” To avoid petty potentates like myself, our Constitution fragmented power. The growth of federal agencies, however, threatens to centralize it. This dangerous trend stems from the notion that realizing one’s coveted vision of the world outweighs the constitutional structure that shelters us from the abuse of power.

A petition now before the Supreme Court raises just such a concern. On its surface, Rothe Development v. Department of Defense continues a weary and threadbare conversation–the constitutionality of favoring certain races over others in federal contracting. That’s a vital issue. But the case also raises questions about the kind of power that unelected bureaucrats should wield in a constitutional republic–even when they’re pursuing a goal like remedying discrimination. PLF, joined by our friends at the Center for Equal Opportunity, filed an amicus brief to highlight the importance of separated powers, especially when it comes to racial favoritism.

Rothe Development involves a federal program in the Small Business Act that allows the Small Business Administration to set aside government contracts for “socially and economically disadvantaged” small business owners. A person is “socially disadvantaged” if he’s suffered prejudice because of his race. The program authorizes the Small Business Administration to identify the races that will enjoy favored access to contracts and then decide when and how to use racial preferences across the vast array of goods and services purchased by the federal government.

The core issue in the case is whether the Act creates a racial presumption that favors minorities over other small business owners. This classic equal protection issue will naturally get the bulk of attention. But we shouldn’t neglect a related issue: by giving the Small Business Administration almost unlimited discretion to discriminate based on race, does the Small Business Act violate the separation of powers?

The Small Business Administration enjoys broad discretion in creating and administering racially segregated markets for precious government contracts. Under the graces of the Small Business Act, the agency can decide which groups deserve favored treatment regarding which contracts in whichever industry the agency chooses, as it deems “necessary or appropriate.” This wholesale delegation of legislative power to an administrative agency raises serious concerns about both the separation of powers and equal protection.

Unlike Sid Meier’s Civilization, the Constitution commits all legislative power to a representative body–Congress. This structure protects civil rights. As Justice Scalia put it, the separation of powers “exists not to look after the interests of the respective branches, but to protect individual liberty.”

By vesting lawmaking power in a democratic body, the Constitution facilitates the constrained and accountable exercise of that power. Congress faces many such constraints; lawmakers must cobble together majorities in two popularly elected houses and escape a presidential veto. And Congress has practical constraints, too, such as its limited size and the infrequency of its sessions. The Constitution thereby curbs lawmakers’ zeal to shape society as they see fit.

Federal agencies, though, face no such constraints. Bureaucrats needn’t answer to voters or pass their regulations by the President, and they have a large, full-time staff. They face about as much constraint as a pimply kid locked in a space race with Stalin on his school computer. Thus, when lawmaking authority migrates into the hands of unelected bureaucrats, power slips away from the control of the electorate.

The delegation of legislative power to decide winners and losers based on race is especially disturbing. First, it erodes the rule of law, which depends upon keeping lawmaking power out of the hands of officials who lack the people’s consent to govern them. One major triumph of the rule of law is that it thwarts government favoritism by demanding that everyone play by pre-established and generally applicable rules. As Hayek said, the rule of law “safeguards that equality before the law which is the opposite of arbitrary government.” The rule of law suffers when agencies wield lawmaking power with unconstrained discretion. Indeed, a blow to the rule of law justified by racial equity rings with special irony, since the rule of law, as Hayek put it, is “the true opposite of the rule of status.”

The unaccountable use of legislative power to favor particular races over others also undermines a core justification behind affirmative action. Advocates of “benign” racial preferences that give minorities a leg up have argued that the majoritarian political process validates the discrimination because the dominant race has agreed to subject itself to discriminatory practices that will help minorities. That premise crumbles when unelected bureaucrats wield the power to decide when, where, and how racial preferences will be allotted to which races.

Even if our goal is racial equality, we court the concentration of power at our peril. Too many have fallen in love with the technocratic ideal in which enlightened bureaucrats wield full discretion to shape their people like the potter shapes the clay. As Frederic Bastiat warned, a movement toward bureaucratic power results in “the spectacle of a few men molding mankind according to their fancy, and mankind to this end enslaved by force or by imposture.” He lamented: “there are too many great men in the world; there are too many legislators, organizers, institutors of society, conductors of the people, fathers of nations, etc., etc. Too many persons place themselves above mankind, to rule and patronize it; too many persons make a trade of looking after it.”

We must constrain such “great men” from imposing their grand vision upon us without the promise of democratic accountability. This couldn’t be more true where the “great men” are deciding who to lavish with special favors on an arbitrary basis like race. Far better to send the bureaucrats back to the business of bureaucracy and not lawmaking, and the high schooler back to his homework instead of conquering the world.