Scenes from the Progressive Freakout (1)

It’s a really tough time to be a liberal Progressive. One bit of evidence appears right now in The New Yorker, where Harvard Law professor Jeannie Suk Gersen worries that the Supreme Court might actually rein in the administrative state. This, she assures us, would produce a “parade of horrors” (actual quote). Let’s start with this passage:

For the better part of a century, the Court has permitted Congress to delegate broad policymaking authority to federal agencies. The Court has not struck down a statute under the non-delegation doctrine since 1935, when a conservative majority was hostile to progressive New Deal measures aimed at protecting workers and consumers.

First, the 1935 case Gersen references here is Schechter Poultry, and I’m guessing she’s never actually read it, or she might know that the case wasn’t decided by a narrow “conservative majority”—Schechter was a 9 – 0 decision, which means even the Court’s liberal members like Brandeis and Cardozo thought Congress had gone too far in delegating power to the Roosevelt Administration. And far from striking down a law that “protected consumers,” the case struck down the National Recovery Act, which totally screwed consumers by establishing industry cartels to keep prices high. How, exactly, did that “protect” consumers? How was the consumer served by sending Jacob Maged to jail for charging a consumer 35 cents to clean and press a suit instead of the 40 cents the government mandated?

But why let facts and nuance get in the way of a good narrative? And for the record, that supposedly “conservative” Court upheld as many key New Deal measures as it struck down. As Arthur Schlesinger (!) once wrote, “Ignorance is never any bar to certitude in the progressive dreamworld.”

This is only the beginning. Let’s keep going:

We are now explicitly on notice that the Court will likely abandon its longstanding tolerance of Congress delegating broadly to agencies. What’s at stake is the potential upending of the constitutional foundations of the so-called “administrative state.” Today’s reality is that agencies, not Congress, make most federal laws. As Justice Kagan put it, if the delegation in Gundy were unconstitutional, “then most of Government is unconstitutional.”*

Sounds good to me! But wait, there’s more!

What will happen then, when the conservative bloc prevails? The alarmist view is that the E.P.A. couldn’t have the power to decide how stringent pollution standards should be. The F.D.A. couldn’t have the authority to approve or deny applications to sell new medical drugs. The Department of Education couldn’t make rules for colleges and universities. The Department of the Interior couldn’t govern snow mobiles in national parks. The S.E.C. couldn’t regulate financial firms or securities. The F.C.C. couldn’t issue rules on net neutrality or Internet service providers. In sum, we would dwell in a world without the federal law that governs our lives.

This is an entirely ridiculous view. Virtually no one thinks that the Court would strike down the Administrative Procedure Act (APA) which governs how agencies produce rules and regulations under Congressional statute, and it is precisely the evasion of the APA’s formal rule-making process that has caused the Court to start rethinking the latitude we give federal agencies to make it up as they wish. A great example is the Obama Administration’s Title IX regulations, imposed entirely outside the APA process because they knew their due process-denying regs would never survive a formal APA review. Someone else who once knew that: Harvard Law professor Jeannie Suk Gersen, who joined with other Harvard Law faculty in 2014 demanding that the Dept. of Education withdraw its infamous “Dear Colleague” command.

What is at issue is chiefly the “Chevron Doctrine,” which allows agencies to run wild when Congress is too general in its statutes. Gersen thinks pulling back on “Chevron Deference” would practically be the end of government itself, when what it would do is require Congress to take more responsibility and do its job.

The main idea of the non-delegation doctrine is that any law that is enforced against citizens must be approved by Congress. [Yes, precisely.] It’s not enough for Congress to say, “We should have a law on this subject and someone else will write and enforce it.” But this formulation is a rhetorical parlor trick. When building a house, one may have a strong idea of the kind of house one wants, but most of us have neither the knowledge nor the desire to make the thousands of key decisions about how to safely construct it. Those decisions are sensibly delegated to a contractor and an architect. A rule forbidding any delegation of that sort makes for very different, more rudimentary, building, and probably many fewer buildings built.

This analogy is so dumb that it hardly needs refuting. How often do you see a builder or architect say, “I think I’ll just add a bathroom here, even though you didn’t ask for it, because I think you should have it”? And as for those “thousands of key decisions” during the building—if they’re all delegated, why do we have building codes and inspectors?


The more robust non-delegation doctrine that the conservative Justices desire would mean a change in the nature and scope of the federal government’s role in our lives. Conservatives favor making it difficult for the federal government to regulate, because, when it does, it risks impinging on our liberties. And, if the federal government does less, states may do more.

If I only read this paragraph of Gersen’s article, I’d think she was for the revival of the non-delegation doctrine. This all sounds pretty good to me.

* As for Justice Kagan’s worry that striking down excessive delegation would mean “that most of Government is unconstitutional,” I recall the first line of Gary Lawson’s famous 1994 article on the Administrative State published in the Harvard Law Review that begins: “The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.” Boom! I say let’s see if Kagan is right!

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