Crisis of the administrative state

Studying administrative law in law school, I don’t think we read anything that raised questions about the legitimacy of the agencies giving rise to to it. We took it as a given and picked up the story with the passage of the Administrative Procedure Act in 1946. We should have taken a look at the question of legitimacy in constitutional law, and probably did, though the standard New Deal account I would have received is extremely misleading.

Exercising executive, legislative and judicial powers, the agencies are a constitutional anomaly. When it comes to a government of limited powers based on the powers allocated and divided among the three branches, the administrative agencies don’t really fit. I am honor bound to add that the Supreme Court doesn’t quite see things my way, although Douglas Ginsburg lucidly spells out elementary principles (and cites some relevant case law) in “Legislative powers: Not yours to give away.”

Judge Ginsburg quotes James Madison in Federalist No. 47 for the proposition that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, may justly be pronounced the very definition of tyranny.” Having Madison as your authority on the Constitution is not too shabby unless you think that history has rendered his teaching and his handiwork moot.

In The Constitution and the New Deal (reviewed here by Richard Morgan), Professor G. Edward White quotes William Howard Taft eulogizing Chief Justice Edward White for his contributions to the “new field of administrative law.” Taft singled out cases reviewing actions of the Interstate Commerce Commission (RIP), the granddaddy of the supposedly independent regulatory agencies. Taft said that:

[t]he Interstate Commerce Commission was authorized to exercise powers the conferring of which by Congress would have been, perhaps, thought in the earlier years of the Republic to violate the rule that no legislative powers can be delegated. But the inevitable progress in exigencies of government and the utter inability of Congress to give the time and attention indispensable to the exercise of powers in detail forced the modification of the rule. Similar necessity caused Congress to create other bodies with analogous relations to the existing legislative, executive, and judicial machinery of the Federal Government, and these in due course came under the examination of this court. Here was a new field of administrative law which needed a knowledge of government and an experienced understanding of our institutions safely to define and declare.

In the beginning, the Supreme Court distinguished between the administration of a law clearly written by Congress and the wholesale delegation of lawmaking powers to these agencies under the rubric of rule making. But funny thing, Congress has been more than happy to cede its powers and its legislative responsibilities in exchange for political cover. Now it can’t be blamed for unpopular policies. The agencies, unaccountable or removable, are to blame. Hadley Arkes observes in The Return of George Sutherland: “The political branches…collaborated in creating these odd offices that did not fit the logic of the separation of powers.”

Over time, the scope of agency rule making has become ever broader and less confined. The federal administrative agencies have grown like Topsy, wielding authority over every corner of our lives. Insofar as our rights and liberties are concerned, the administrative state in the Age of Obama has achieved proportions reflecting a crisis. Something, more than something, many things have gone haywire since the Progressive era and the New Deal.

Every year the agencies expand their reach and become less accountable. A Democratic Congress joined with Obama to open up whole new frontiers in administrative governance, starting with Obamacare, but Obamacare is only the beginning. Consider, for example, the Consumer Financial Protection Bureau and its administrative structure, as described by Todd Zywicki (more here):

A centerpiece of the Dodd-Frank financial reform legislation was the creation of a new Federal Consumer Financial Protection Bureau (“CFPB”) within the Federal Reserve. Few bureaucratic agencies in American history, if any, have combined the vast power and lack of public accountability of the CFPB. It is an independent agency inside another independent agency, presided over by a single director who is insulated from presidential removal. Additionally, the Board is outside of the congressional appropriations process. Finally, its actions are unreviewable by the Federal Reserve—they can be checked bureaucratically only by a supermajority vote of the Financial Stability Oversight Council finding that the Board’s actions imperil the safety and soundness of the American financial services industry.

The CFPB brings us the reductio ad absurdum of the administrative state. The legal structure around the CFPP is designed precisely to insulate it from political accountability. It is a design better suited for a government of unlimited powers conducive to tyranny rather than to a government of limited powers conducive to freedom. One wonders if the Supreme Court will ever return to first principles or set some limits on how far removed the agencies can be from political accountability. That would be a beginning.

As Professor Arkes suggests, we also need to restore an understanding of limited government to the political branches. The REINS Act introduced in the House last year reflects some creative thinking on the subject. It is at least a start.

The Environmental Protection Agency now purports to regulate carbon dioxide and other greenhouse gases as pollutants under the Clean Air Act. That’s a rather wide ambit of authority, extending even to human exhalation. As for breathing in, I guess we’re on our own, at least as of today.

What will the Supreme Court say about the EPA’s assertion of authority? We should know by the end of June.

At PJ Media, Bill Straub reviewed 2013 and its “tsunami of regulatory actions” on the environment. It’s hard to keep up. And as for keeping up, we haven’t even reckoned with the unfolding regime of Obamacare, with its thousands of pages of regulations to date and many more to come.

The theory of the administrative state, as one can deduce from Taft’s eulogy, is that the complexity of modern life called for (and legitimated) governance by experts. We are not fit to rule ourselves. It is a theory fundamentally inconsistent with the theory of the Constitution. See, for example, columns by Professor Edward Erler here and here.

Professor Jean Yarbrough has made the basic point in a message to us that cannot be repeated too often:

We need an updated online primer in American government and political thought. We all learn about the separation of powers and federalism, but don’t understand that these restraints do not operate in the administrative universe. Indeed, the administrative state was designed to overcome these obstacles. Our mission should be to educate Americans on the real effects of this turn toward administrative regulations and rules.

Who will answer the call?

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