Judicial Fortitude: The Last Chance to Rein in the Administrative State
by Peter J. Wallison
Neither Congress nor the federal judiciary perform the key roles assigned them by the Constitution very well, attorney-author Peter J. Wallison contends convincingly in this extended essay. He laments the consequent historic rise (beginning in the Progressive Era) and present dominance of a multitude of unelected and effectively unaccountable administrative agencies bureaucratically making, interpreting, and enforcing the public policies that govern all our lives. This unfortunate situation has been allowed to materialize, Wallison cogently explains, for two related reasons. First, elected legislators have grown politically comfortable with enacting vague statutes announcing nondelineated, uncontroversial but meaningless goals (“make the world a nicer place”) and ordering specific administrative agencies to promulgate and then enforce detailed regulations to accomplish the legislatively stated goal; this is done instead of the difficult job given Congress in art. I, as the elected branch of government, of making the sorts of policy choices necessary for representative governance. The legislative malfeasance is compounded by the federal courts’ modern seeming unwillingness to require Congress to state in its enacted statutes clear “intelligible [policy] principles” to guide agency rulemaking (the nondelegation doctrine). Moreover, even when Congress has made a policy choice and sufficiently stated an intelligible principle for empowering the agency to fill in the administrative details of the legislative plan, the Supreme Court’s Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), decision compels courts to defer to an agency’s own regulatory interpretation of the statute the agency is claiming as the source of its legal empowerment, hence precluding judicial questioning about whether the agency’s promulgated rules and enforcement actions accurately conform to congressional language and intent.
The problem with all this, the author warns, lies with the resulting danger to the structural scheme of government carefully embodied in the U.S. Constitution, namely, the system of separation of powers/checks and balances that Madison, et al., purposely crafted to prevent the accumulation and, therefore, the abuse of too much power in any single branch of government. Wallison worries plausibly that the concentration of largely unguided and unreviewed legislative, executive, and judicial power in administrative agencies that were not contemplated, let alone sanctioned, by either the Constitution or the Federalist Papers selling the blueprint of American government to the people, is perilous to the successful future of our democratic republic.
Some criticize the historical constitutional structure of separation of powers/checks and balances as an impediment to initiating and carrying out necessary governmental intervention addressing today’s complex social and economic challenges. Whether this architecture has become too antiquated and cumbersome for modern society and whether an even greater administrative state might better meet public needs is a matter deserving reasonable debate. The Constitution contains provisions making itself amenable to amendment. However, until proponents of change successfully invoke the amendment process, the existing structural separation of powers/checks and balances foundation must be respected and nurtured.
The one notable shortcoming of this book is that it deals exclusively with the administrative state and the legal developments underpinning it at the federal level. A few state courts still recognize and apply the nondelegation doctrine in the realm of state legislation and agency rulemaking, so some discussion of activity at the state level would have been interesting. This gap notwithstanding, Judicial Fortitude is important reading for attorneys concerned with the rise of the “administrative state” and its implications for the rule of law in this country.
Marshall B. Kapp of Tallahassee is a member of The Florida Bar.