The term “fourth branch” is often invoked in a pejorative, derisive way to designate bureaucracy as something alien to the constitutional framework. As the Brownlow Committee put it in 1937, the “headless fourth branch” does “violence to the basic theory of the American Constitution that there should be three major branches of the Government and only three” (President’s Committee on Administrative Management, Administrative Management in the Government of the United States 40 (1937)). Increasingly, the Supreme Court’s own constitutional formalism and deep skepticism of the bureaucracy threatens to unwind the administrative state as we know it. All of this makes Brian J. Cook’s efforts to celebrate the fourth branch in his new book by that name seem almost countercultural at first glance. Yet, Cook is not alone in pushing back. A spate of recent contributions in public administration, political science, and law shows the indispensability of the bureaucracy to the vindication of treasured constitutional norms as well as to modern government. As timely as the work therefore is, just how far forward Cook moves the defense is not clear.

Two features of Cook’s argument differentiate it from extant attempts to rehabilitate the bureaucracy. First, Cook grounds his defense of bureaucracy in a specific theory about what it is that the Constitution sought to establish—namely, a “commercial republic” in which the polity “find[s] ways to harness the desire for economic gain, and self-interest more generally, so as to secure, sustain, and perhaps even enhance republican government—democracy with limits” (p. 11). A central part of the commercial republic vision, he argues, is a professionalized administrative state that can foster the conditions necessary for a “division of labor between market and state” (p. 53). Second, Cook advocates formally ensconcing the bureaucracy in the constitutional framework as a coequal branch alongside the legislative, executive, and judicial branches to restore balance in a once-commercial republic that has somewhat recently veered perilously into corporate oligarchy and a “working constitution” exhibiting “strong neoliberal tendencies” (p. 120). These two moves follow the overall structure of the book, with a lengthy articulation of the theory and history of the commercial republic preceding an argument for a reconstitution of the emergent fourth branch as a real fourth branch.

Linking the defense of the bureaucracy to the rather niche notion of the commercial republic does the book more disservice than good. Cook draws on works by Bill Novak and Jerry Mashaw, which have shown that bureaucracy existed from the earliest days of the “working constitution”—hence, it is not as foreign as critics make it out to be—but Cook repurposes this evidence to maintain the more difficult claim that there was a governing constitutional theory, or ideology, that envisioned a carefully calibrated balance of power between commercial interests and public interests maintained by an administrative state with some stature (p. 124). According to Cook, the nation has lost its grip on that balance in recent decades as the bureaucracy’s authority has eroded under withering attacks and industry dominance (p. 124). This argument, much like more general accounts of regulatory capture, has a baseline problem (i.e., it cannot with any precision tell us what this balance looks like or how to evaluate when it is lost), and Cook somewhat uncritically accepts the idea that bureaucracy has become unable to stand up to powerful corporate interests on his way to concluding that a reconstitution of the fourth branch is necessary (p. 135). Some will accept the normative reading of constitutional theory and the descriptive picture of what was had and what was lost, but many others will not, and it undermines the larger project to peg the case for the fourth branch on such contestable premises.

Credit must be given where credit is due: Cook’s suggestion that the bureaucracy be made a coequal branch of government is a bold and original one. Again, almost all of the similar works in the literature seek to legitimate existing arrangements that constitute an informal fourth branch (chapter 5), but Cook makes the novel case for formalization (chapter 4). And there is probably much to be said for it—at the very least, it would end overnight the tendentious arguments that the lack of any textual reference to the administrative state in the Constitution dooms the legitimacy of modern government (p. 173). However, the book only begins to scratch the surface of a prescriptive case for formalization. Cook’s central argument is that formally elevating the bureaucracy to a coequal branch within the constitutional framework would give the bureaucracy more clout in its constitutionally designated role of maintaining the desired balance (p. 225). This raises more questions than it answers, though. Why would formally designating the bureaucracy as a coequal fourth branch of government give more actual power to the bureaucracy vis-à-vis the other branches? Cook’s answer is short on specifics, but the implication is that simply having the power on paper would give administrative agencies the autonomy needed to serve as a real counterweight to corporate power in institutional deliberations (p. 151). Yet, Cook at times comes close to acknowledging, as he must, that an incipient fourth branch in the separation of powers would not be guaranteed to be able to fend off the very forces that allegedly caused the bureaucracy to lose its grip on the commercial republic—namely, its subordinate status with respect to the political branches, which are more beholden to factional interests (p. 221). After all, Congress would still hold many of the cards in deciding whether to delegate or appropriate funds to the fourth branch, so formal independence could still be undermined.

Cook is up front about the fact that he does not intend to be bound by the possible (p. xii), which is why he is willing to consider a constitutional restructuring that is, practically speaking, a nonstarter. But even with that said, a heavy burden falls to proponents of formal constitutional change to justify even the theoretical desirability of a change to the fundamental law of the nation. On this level, the book falls a bit short. Cook does provide a convincing rebuttal of some of the most likely objections to constitutionalizing the bureaucracy—for instance, that the fourth branch would be democratically unaccountable (p. 203). Such accountability-based critiques of the current administrative state are indeed overplayed. Where Cook fails to carry the full weight of the case, though, is in demonstrating that formalizing bureaucracy’s place in the constitutional framework would make any positive difference in terms of the autonomy and capacity of the bureaucracy. Cook dismisses attempts to find anything salvageable in the current, informal manifestation of the administrative state, arguing that such reforms are likely only to “add to the complexity of a system already rife with unintended complexity” (p. 127). The analysis underappreciates the subtle legitimizing mechanisms of internal separation of powers and reputational capital that other scholars, such as Jon Michaels and Dan Carpenter, have argued can make agencies effective servants of the public interest, and it fails to acknowledge the risks that constitutional recalibration would pose for those alternate mechanisms.

Despite all of this, The Fourth Branch is essential reading for those interested in ongoing debates about the future of the administrative state. It brings a much-needed sense of urgency to the scholarly community to address head on the rising tide of anti-administrativism, and its suggestion that no arguments should be left on the table is an entirely appropriate recognition that this is—whether formally or informally—a moment of constitution making.