Barron on the administrative state

Paul has been writing about the nomination of David Barron to the United States Court of Appeals for the First Circuit (here and here). I’ve been writing about the questionable status of the administrative state in light of the separation of powers under the Constitution. To the extent of my capacity to understand, Publius has been my guide and authority.

Barron stands at the intersection of Paul’s and my interests. He is, as it happens, the Honorable William S. Green Professor of Public Law at Harvard Law School. His Harvard biography is posted here.

Among Barron’s areas of scholarly interest is administrative law. When it comes to the doctrinal underpinnings of the administrative state, Barron is something of a radical. If the original understanding of the Constitution is matter, Barron is antimatter. If he were a conservative of some sort, his views would be characterized as extremist.

Barron is the coauthor (with Todd Rakoff), for example, of the recently published Columbia Law Review article “In defense of big waiver.” It begins like this:

Congressional delegation of broad lawmaking power to administrative agencies has defined the modern regulatory state. But a new form of this foundational practice is being implemented with increasing frequency: the delegation to agencies of the power to waive requirements that Congress itself has passed. It appears, among other places, as a central feature of two signature statutes of the last decade, the No Child Left Behind Act and the Patient Protection and Affordable Care Act. We call this delegation of the power to unmake major statutory provisions “big waiver.”

In administrative law, the frontier has not closed. Barron is still opening new frontiers.

By contrast, Gary Lawson has undertaken the task of restoration. Lawson seeks to restore the original understanding of the illegitimacy of the administrative state in the excellent essay “Delegation and the Constitution.” See also Lawson’s Harvard Journal of Law and Public Policy article “Burying the Constitution under a TARP.” Lawson puts it this way:

Asking whether the modern administrative state is unconstitutional is like asking whether Yale Law School has a tendency to emphasize theory. “Yes” does not do justice to the question. The modern administrative state is not merely unconstitutional; it is anti‐constitutional. The Constitution was designed specifically to prevent the emergence of the kinds of institutions that characterize the modern administrative state. The founding generation would have been dumbstruck by the governmental edifice that has arisen from its handiwork.

We’ve got a long, hard road ahead of us.

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