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Mark Pulliam on Peter Wallison's New Book on the Administrative State
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: Dismantling the Administrative State (discussing Peter J. Wallison’s "easily-digestible monograph" Judicial Fortitude: The Last Chance to Rein in the Administrative State (Encounter Books, forthcoming 2018)).  From the introduction:

A remarkable movement is underway in the legal world, unlike any other during my lifetime. Growing skepticism regarding the conceptual underpinnings of the “administrative state”—the alphabet soup of powerful administrative agencies that dominate Beltway policymaking—portends imminent retrenchment of well-established understandings (and judicial precedents) that enabled the federal Leviathan. Doctrinal reversals of a significant nature are rare, particularly when they reflect conservative initiatives and overturn the foundations of Progressive governance. Yet we are on the verge of such a dramatic shift.

For half a century—dating to New Deal-era reliance on administrative agencies to “fix” the ostensibly broken machinery of democracy and free markets—it was assumed that “administrative law” is an essential feature of modern life. Specialized expertise by unelected bureaucrats was the “secret sauce” that would remedy the purportedly sclerotic—and old-fashioned—system of checks and balances contemplated by the Constitution. Justice Felix Frankfurter expressed the consensus view when he described administrative law as an essential form of “governmental supervision” that could not be effectively exercised through “self-executing legislation” or the judicial process.

Indeed, there was widespread bipartisan consensus among both politicians and legal scholars that what we now call the administrative state was a good thing—or at least necessary and inevitable. Chevron v. NRDC, the 1984 Supreme Court decision establishing judicial deference to administrative agency interpretation of federal statutes, was the high-water mark of our infatuation with administrative law.


In recent decades, however, the tide of opinion has turned. Some Supreme Court justices (led by Clarence Thomas) have begun to question the reasoning—and even the validity—of once-settled administrative law precedents on originalist grounds. Instead of arguing over divisive issues such as “judicial engagement,” conservative and libertarian legal scholars have united to criticize Chevron and to point out that many features of modern administrative law contravene the separation of powers enshrined in the Constitution (not to mention the plain language of the 1946 Administrative Procedure Act).

And from the discussion of the Wallison book:

Wallison is a knowledgeable Washington, D.C. insider, having served as White House counsel to President Ronald Reagan and general counsel to the U.S. Treasury Department in the Reagan administration.  He now serves as co-director of the American Enterprise Institute’s program on financial policy studies. In Judicial Fortitude, Wallison trods a path previously explored by other scholars, but he manages to find some fresh insights. What makes Wallison’s book notable—and valuable—is that it is relatively brief (166 pages of text), well-written, and accessible to readers who are not administrative law nerds.

Wallison takes the originalist critique of the administrative state beyond merely questioning Chevron; he argues (in chapter 6) that the moribund “nondelegation doctrine” needs to be revived. This compelling analysis is the highlight of the book, a clear demonstration that resuscitating lost wisdom is just as important as trail-blazing scholarship. It is one thing to trim the sails of administrative agencies by making their interpretations (of both statutes and regulations) subject to meaningful judicial review. Article I of the Constitution expressly grants “all legislative powers” to the Congress. Therefore, the threshold question is whether it is constitutional for administrative agencies that are part of the executive branch to promulgate an extraordinary volume of regulations (numbering in the thousands each year) that represent major policy decisions and are the functional equivalent of legislation.

In conclusion:

Wallison contends that the Court’s abandonment of the constitutional function intended by the Framers represents a lack of the judicial “fortitude” that Alexander Hamilton felt was necessary for courts to serve as “faithful guardians of the Constitution.” [5] The Court’s relinquishment of its proper role, Wallison argues, has empowered the administrative state and allowed Congress to cede an unwarranted amount of power to the executive branch.  Notwithstanding a general lack of scholarly enthusiasm for reviving the nondelegation doctrine, Wallison detects “stirrings” at the Supreme Court, counting Chief Justice Roberts and Justices Thomas and Alito as possibly supporting a return to pre-New Deal precedents.

This would not constitute “judicial activism” because preserving the structure of the Constitution is, as Marshall wrote in Marbury v. Madison, “emphatically the province and duty” of the judiciary. The Court’s failure to enforce the nondelegation doctrine constitutes abdication, not restraint.

With President Trump’s appointment of Justice Neil Gorsuch and the nomination of Judge Brett Kavanaugh, the Supreme Court may soon have the votes necessary to change directions. Judicial Fortitude boldly points the way.

And here is the Amazon book description for Judicial Fortitude:

In this book, Peter J. Wallison argues that the administrative agencies of the executive branch have gradually taken over the legislative role of Congress, resulting in what many call the administrative state. The judiciary bears the major responsibility for this development because it has failed to carry out its primary constitutional responsibility: to enforce the constitutional separation of powers by ensuring that the elected branches of government—the legislative and the executive—remain independent and separate from one another. Since 1937, and especially with the Chevron deference adopted by the Supreme Court in 1984, the judiciary has abandoned this role. It has allowed Congress to delegate lawmaking authorities to the administrative agencies of the executive branch and given these agencies great latitude in interpreting their statutory authorities. Unelected officials of the administrative state have thus been enabled to make decisions for the American people that, in a democracy, should only be made by Congress. The consequences have been grave: unnecessary regulation has imposed major costs on the U.S. economy, the constitutional separation of powers has been compromised, and unabated agency rulemaking has created a significant threat that Americans will one day question the legitimacy of their own government. To address these concerns, Wallison argues that the courts must return to the role the Framers expected them to fulfill.