Rein In the Administrative State -- and Preserve Democracy

Rein In the Administrative State -- and Preserve Democracy
AP Photo/J. David Ake
Rein In the Administrative State -- and Preserve Democracy
AP Photo/J. David Ake
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With Brett Kavanaugh now settled in at the Supreme Court, academics and others on the left have begun to worry that the court will reduce the power and reach of the federal government’s administrative and regulatory agencies—often called the administrative state.

Eric Posner, a professor at the University of Chicago Law School, recently wrote in a New York Times op-ed: “The conservative majority [on the court] can, and most likely will, rule against the government using broad theories that would also eat away at the constitutional foundations of the New Deal system, which is essential for protecting health and safety, the environment and much else.”

Posner is correct; it’s likely that the court’s new conservative majority will pare back the power of the administrative state when an appropriate case comes before the court. But instead of reducing the protections American get from regulation, the court will be acting to preserve American democracy—something academics and others on the left fail to recognize or appreciate.

The administrative state’s threat to democracy arises primarily from a 1984 Supreme Court ruling in Chevron v. Natural Resources Defense Council. There, the court directed lower federal courts to defer to administrators’ interpretations of their own statutory authorities, if these interpretations are “reasonable.”

Administrative agencies are always looking for ways to increase their powers, and this ruling enabled them to expand the scope of their rules beyond the four corners of the statutory language that is the legal basis for their authority.

In the U.S. Constitution, the Framers created a government of separated powers, in which Congress—elected by the people—has the sole power to make the laws; an executive branch, headed by the president, is limited to enforcing the laws; and a judiciary, headed by the Supreme Court, is authorized to interpret the laws.

Apart from specific limited powers granted to the president under the Constitution itself, neither the president nor the agencies of the executive branch have any authority to act other than under—and consistent with—a statute enacted by Congress.

The actions of administrative agencies, then, are only valid if they are based on authority conferred by Congress. If the rules or regulations of these agencies go beyond that authority, they are not only invalid but amount to unauthorized lawmaking, a violation of the  Constitution’s statement that “all legislative power herein granted is vested in a Congress of the United States.” So the fundamental question about the authority of administrative agencies to issue rules is whether these rules are ultimately based on laws enacted by Congress.

The deference that the Chevron court accorded to administrative agencies in 1984 enabled them to interpret their statutory authority very broadly, and substantially reduced the likelihood that reviewing courts would object. As a result, in every year since 1993 the agencies of the administrative state have issued over 3,000 rules and regulations—a total of more than 101,000 in 25 years. While that in itself does not prove that these rules were not authorized by Congress, it does suggest that the agencies have been taking full advantage of the Chevron decision to expand their rule-making authority.

Many of those who fear elimination or modification of what is called Chevron deference like the policies that the agencies of the administrative state have imposed. But they ignore the fact that, in a democracy, unelected officials should not have the power to make rules that have not been specifically authorized by Congress.

That is likely to be the test that the new, more conservative Supreme Court will apply if it modifies or eliminates Chevron. It will authorize lower courts to determine, through what is known as judicial review, whether a rule under challenge is soundly based in statutory language. If it is not, the rule must be adjudged invalid.

As now-Justice Kavanaugh wrote in a 2015 court of appeals dissent, “If an agency wants to exercise expansive regulatory authority over some major social or economic activity…an ambiguous grant of authority is not enough. Congress must clearly authorize an agency to take a major regulatory action.”

No one who believes that the United States is a democratic republic can argue with this idea. But we should be aware that, for progressives, democracy is often a second choice.  

Peter J. Wallison a senior fellow at the American Enterprise Institute. His most recent book, “Judicial Fortitude: The Last Chance to Rein In the Administrative State” (Encounter Books), was published in October. 

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