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Published online by Cambridge University Press: 11 October 2021
Following the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.
Division of Social Sciences, Politics, Hillsdale College, [email protected].
1 In an earlier essay published in this journal (Ronald J. Pestritto, “The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis,” Social Philosophy and Policy 24, no. 1 [2007]: 16 [note 1]), I provided a more detailed definition of the “administrative state,” which may be useful to repeat here:
By “administrative state,” I refer to the situation in contemporary American government, created largely although not entirely by Franklin Roosevelt’s New Deal, whereby a large bureaucracy is empowered with significant governing authority. Nominally, the agencies comprising the bureaucracy reside within the executive branch, but their powers transcend the traditional boundaries of executive power to include both legislative and judicial functions; these powers are often exercised in a manner largely independent of presidential control and of political control altogether. Given the vast array of activities in which the national government has involved itself in the post-New Deal era, the political branches of government have come to rely heavily on the expertise of bureaucratic agencies, often ceding to them significant responsibility to set, execute, and adjudicate national policy.
2 Vague doesn’t mean short. The Affordable Care Act spanned roughly 2,300 pages as enacted, though many of those pages were filled with delegations of specific rulemaking responsibilities to the Department of Health and Human Services as well as other agencies. House Speaker Nancy Pelosi’s famous remark that “we have to pass the bill so that you can find out what is in it” was truer than perhaps even she knew at the time, as these delegations necessitated thousands of pages of subsequent regulations to give the law its real effect.
3 Hamburger, Philip, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014)CrossRefGoogle Scholar; Joseph Postell, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government (Columbia, MO: University of Missouri Press, 2017). See also Marini’s, John Unmasking the Administrative State (New York: Encounter Books, 2019)Google Scholar, which raises many issues beyond administrative law in its principled critique of the administrative state’s rise and current power.
4 Metzger, Gillian, “1930s Redux: The Administrative State Under Siege,” in Harvard Law Review 131 (2017): 1–95 Google Scholar; Mashaw, Jerry, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (New Haven, CT: Yale University Press, 2012).Google Scholar
5 Gary Lawson, “The Rise and Rise of the Administrative State,” Harvard Law Review 107, no. 6 (1994). The author also acknowledges a general intellectual debt to Lawson’s body of work; while I suspect he might not endorse the analysis in this essay, the understanding here of the principles of administrative law and its most relevant cases has grown out of my reliance on Lawson’s Federal Administrative Law casebook over many years in teaching my courses (see 8th edition, West Academic Publishing, 2019).
6 Pestritto, “Progressive Origins of the Administrative State,” 16–54; Wilson, Woodrow, “The Study of Administration,” in Woodrow Wilson: The Essential Political Writings, ed. Ronald J. Pestritto, (Lanham, MD: Lexington Books, 2005), 231–48Google Scholar.
7 Carter v. Carter Coal Co., 298 U.S. 238 (1936). There are other kinds of inter-branch delegations that would be equally problematic from a separation-of-powers perspective, but moving legislative or rulemaking power from Congress to an executive entity is the most relevant to the rise of the administrative state. Other kinds of delegation—for example, vesting administrative entities with judicial power—have also been attempted and have been permitted by courts from time to time. See Crowell v. Benson, 285 U.S. 22 (1932); Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986).
8 In addition to these constitutional questions about the administrative state in particular, there are other areas of constitutional law that affect the scope of agency action—due process considerations, most notably. Yet these are considerations that apply to all governmental entities, not just administrative agencies, and thus lie beyond the scope of this essay on the rise of administrative power. Those interested in the manner in which core constitutional rights might affect agency action should consult the landmark case of Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), as well as its progeny and relevant literature.
9 United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973).
10 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978). This isn’t to suggest that the rulemaking process is now straightforward—far from it. But agencies—as well as those affected parties with deep resources—have figured out how to manage the process, and the overall historical trend has been to loosen restrictions on agency action.
11 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
12 Auer v. Robbins, 519 U.S. 452 (1997).
13 See the defense of a unitary executive in Publius, The Federalist, ed. George W. Carey and James McClellan (Indianapolis, IN: Liberty Fund, 2001), No. 70: 363–69. The extent of the president’s removal power was not fully settled at the constitutional convention, and the Constitution itself is explicit about appointment but not about removal. There was a major debate about the issue in the First Congress, where James Madison and others relied upon the principle of the unitary executive in adopting the option of sole presidential removal in the legislation creating the first executive departments. For the best account of this debate, see Charles C. Thach, Jr., The Creation of the Presidency, 1775–1789 (Baltimore, MD: Johns Hopkins Press, 1969), 140–65. Moreover, respecting the characterization of the president as the only elected executive officer, one should note that the vice president is also an elected officer, but his election is tied to the president’s, and the only constitutional powers exercised by the vice president are actually legislative, in his capacity as president of the Senate.
14 Buckley v. Valeo, 424 U.S. 1 (1976).
15 The 1974 amendments to the Federal Election Campaign Act of 1971 directed that the six voting members of the Commission be appointed in the following manner: two appointments each by the president, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate.
16 Buckley v. Valeo, 109–43.
17 Lucia v. SEC, No. 17-130, slip op., 12 (U.S. June 21, 2018).
18 Humphrey's Executor v. United States, 295 U.S. 602 (1935). This case centered around President Franklin Roosevelt’s attempt to remove a Federal Trade Commissioner, at will, in defiance of a statute declaring that removals could only come for cause. The Court upheld the congressional limitation on the president’s removal power, reasoning that even though the commissioners were inarguably executive branch officials, their functions were partly legislative and partly judicial, thereby justifying something less than complete presidential control.
19 Morrison v. Olson, 487 U.S. 654 (1988). This case upheld the “independent counsel” provisions of the 1978 Ethics in Government Act in the face of numerous separation-of-powers challenges.
20 Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).
21 Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010) (Breyer, J., dissenting), 514.
22 PHH Corporation v. Consumer Financial Protection Bureau, No. 15-1177 (D.C. Cir. Feb. 16, 2017).
23 PHH Corp. v. CFPB, No. 15-1177 (D.C. Cir. Jan. 31, 2018).
24 CFPB v. RD Legal Funding, 332 F. Supp. 3d 729 (S.D.N.Y. 2018). The Ninth Circuit has taken a different view of a similar case: CFPB v. Seila Law LLC., 923 F. 3d 680 (9th Cir. May 6, 2019).
25 Mistretta v. United States, 488 U.S. 361 (1989).
26 Ibid., 372.
27 At the risk of being overly simplistic for the sake of brevity, the term “originalist” refers to those who believe that the Constitution should be interpreted to reflect the meaning that its framers intended, whereas those who believe that judges should find new meaning in the Constitution to reflect changing circumstances are said to advocate a “living constitution.” The Court’s opinion in Mistretta is considered an excellent example of the “living constitution” school, in its admission that the statutory scheme likely contradicts the original idea of separation of powers, but must be permitted nonetheless due to new circumstances. For a classic example of originalism, see Justice Scalia’s dissent in Morrison v. Olson—a case described above—where he argues that whatever alleged need there might be for an independent counsel to investigate high-ranking executive officers, the Constitution’s separation-of-powers principle forbids it and ought to take precedence. Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting), 697-734.
28 Gundy v. United States, No. 17-6086, slip op. (U.S. June 20, 2019).
29 Gundy v. United States, No. 17-6086, slip op. at 1 (U.S. June 20, 2019) (Gorsuch, J., dissenting).
30 Ibid., 5.
31 Gundy v. United States, 17.
32 Gundy v. United States, No. 17-6086, slip op., 1 (Alito, J., concurring).
33 Paul v. United States, No. 17-8830, slip op., 1 (U.S. November 25, 2019) (Statement of Kavanaugh, J., respecting the denial of certiorari).
34 Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987), 423; Stevens’s view of the meaning of the Chevron doctrine would seem to be particularly relevant, since he was the author of the Court’s opinion in Chevron.
35 Christensen v. Harris County, 529 U.S. 576 (2000), 577.
36 United States v. Mead Corp., 533 U.S. 218 (2001), 218–19.
37 Christensen v. Harris County, 529 U.S. 576 (2000) (Scalia, J., concurring), 589; United States v. Mead Corp., 533 U.S. 218 (2001) (Scalia, J., dissenting), 239.
38 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), 133.
39 King v. Burwell, No. 14–114, slip op., 8 (U.S. June 25, 2015).
40 See, for example, Dole v. United Steelworkers, 494 U.S. 26 (1990), 28–40; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), 133–59; King v. Burwell, No. 14–114, slip op., 15–20 (U.S. June 25, 2015).
41 Utility Air Regulatory Group v. Environmental Protection Agency, No. 12–1146, slip op., 16–17 (U.S. June 23, 2014); Michigan v. EPA, No. 14–46, slip op., 6–11 (U.S. June 29, 2015).
42 Michigan v. EPA, No. 14–46, slip op., 3 (U.S. June 29, 2015) (Thomas, J., concurring).
43 City of Arlington v. Federal Communication Commission, 569 U.S. 290 (2013) (Roberts, C. J., dissenting), 313–15.
44 Perez v. Mortgage Bankers Association, 135 S.Ct. 1199 (2015) (Scalia, J., concurring), 1210.
45 Kisor v. Wilke, No. 18–15, slip op., 22 (U.S. June 26, 2019) (Gorsuch, J., concurring).
46 The difference between Auer and Chevron deference lies in the kind of agency action that a court is reviewing. When a court defers under Auer, the agency has taken an action that is based on that agency’s interpretation of its own prior regulation. The Auer case concerned the question of exemption from overtime pay, and centered around whether certain employees met a general standard for exemption which had previously been promulgated by the Department of Labor; the issue before the court was not the meaning of the underlying statute, but rather the meaning of the regulation which had been made pursuant to that statute. This is different than the kind of question that arises under Chevron, where the issue before the court was how the agency had interpreted the underlying statute itself.
47 Kisor v. Wilke, No. 18–15, slip op., 2 (U.S. June 26, 2019) (Roberts, C. J., concurring).
48 Kisor v. Wilke, No. 18–15, slip op., 11–12 (U.S. June 26, 2019).
49 Final Rule, Bump–Stock–Type Devices, 83 Fed. Reg. 66, 514, Dec. 26, 2018.
50 Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives et al., No. 19–5042, slip op., 45–54 (D.C. Cir. April 1, 2019).
51 Petition for Writ of Certiorari to the Supreme Court of the United States in Guedes v. BATFE (Aug. 29, 2019).
52 5 U.S. Code § 706 (2016).
53 Industrial Union Department, Afl–Cio v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974), 471–72; Motor Vehicle Mfrs. Association v. State Farm Ins., 463 U.S. 29 (1983), 40–43.
54 Fred Babash and Deanna Paul, “The Real Reason the Trump Administration is Constantly Losing in Court,” Washington Post, March 19, 2019.
55 Motor Vehicle Mfrs. Association v. State Farm Ins., 463 U.S. 29 (1983) (Rehnquist, J., concurring in part/ dissenting in part), 59.
56 Motor Vehicle Mfrs. Association v. State Farm Ins., 46–59.