Can The Administrative State Ever Be Reined In?

A couple of weeks ago on March 9, two Supreme Court cases came down on relatively obscure issues of administrative law.  They are Perez v. Mortgage Bankers Assn. and Dep't of Transportation v. Ass'n of American Railroads.  Both were unanimous reversals of the lower courts, and neither one attracted much attention in the press at all.  But there's something unusual and very remarkable about these cases that I did not notice at the time: both contain lengthy concurrences by several of the Justices (Alito, Scalia and Thomas) that call into question in fundamental ways the whole basis of the administrative state.  Thomas, most notably, wrote a separate concurrence of 23 pages in one case and 27 in the other.  This is by no means an every day event.

What do I mean by the administrative state?  It is the vast extra-constitutional apparatus of agencies and rules that sprang up mostly starting from the New Deal and has only accelerated since.  Read the Constitution and you will find only three grants of power, one to each of the three branches of government: "All legislative Powers herein granted shall be vested in a Congress of the United States . . ." (Art. I); "The executive Power shall be vested in a President of the United States . . . ." (Art. II); and "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . ." (Art. III).  What could be simpler and more elegant?  Three sorts of power allocated to three separate branches, who do not work for each other and can check each other's power in various ways.

Even though the Constitution has not been amended in any respect on this subject, here's how it works today: Dozens of administrative agencies, some within the executive departments and some not, promulgate thousands upon thousands of pages of rules purporting to bind the American people.  Then agency staff prosecute the people for violations of those rules before "administrative law judges" who are also employees of the same agency; and if you lose before the ALJ (which almost everyone does -- they are not impartial in any meaningful sense) your "appeal" is to the head of the agency, who is also the boss of the prosecutors and of the ALJ.  Then, assuming that you have infinite resources to continue a fight against the ultimate deep pocket, you have a theoretical right to take further appeals into a court system, but that court system under Supreme Court precedent gives so-called "deference" about 99% of the time to agency determinations.  And by the way, every federal official involved in this gigantic charade has taken an oath to uphold the Constitution.  Has anybody here even read it?

And thus, to take just one example among zillions, we now have EPA in the process of promulgating "regulations" having the purpose and effect of forcing the shut-down of the entire coal-based portion of electricity generation in this country, which until recently was almost half of our electricity.  If those regulations are to be generally applicable to the American people and govern private conduct, don't they have to be passed by both houses of Congress and signed by the President?  Or how about the SEC purporting to ban what they call "insider trading" by non-insiders -- something that Congress has never made illegal -- and then seeking to prosecute "violators" before its own ALJs?

There's not nearly enough room in a post here to describe the sorry history that got us into this predicament.  But I do recommend reading all of these concurrences in their entirety.  If you take an hour with that project, you will get a good grounding in some of the most fundamental constitutional principles, and with any luck you will also unlearn a good deal of the looking-glass constitutional law that you have undoubtedly ingested from the likes of Linda Greenhouse and Adam Liptak (of Pravda).

Just a few key quotes to give you a taste.  This is from Justice Alito's concurrence in Association of American Railroads:

The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. See INS v. Chadha, 462 U. S. 919, 959 (1983). It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints.

From Justice Thomas's concurrence in Association of American Railroads:

We have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body . . . but it has become increasingly clear to me that the test we have applied to distinguish legislative from executive power largely abdicates our duty to enforce that prohibition. . . .  I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.

All of these concurrences cite and rely to varying degrees on the excellent current book by Columbia Law Professor Philip Hamburger, Is Administrative Law Unlawful?  Hamburger has done an unbelievable job of tracing the history of the rule of law and separation of powers back into Renaissance and even medieval times.

So the answer to the question in my title is, yes the administrative state could be reined in, and dramatically so, by the right Supreme Court.  However, currently a plurality (but maybe a small plurality) of our justices think that micromanagement of the people by unaccountable government "experts" is the way to go, and if the Constitution doesn't seem to say that, we'll just find some way to let it happen.

Thanks to Michael Greve of Library of Law and Liberty for pointing me to these decisions and the concurrences.

UPDATE March 26, 2015: I had some time on the subway this morning with nothing better to do than read the op-eds in today's New York Times (now that's desperate!) and I came across one by recent NYU Law dean Ricky Revesz complaining about Harvard Con Law Professor Larry Tribe (he taught Con Law to President Obama -- and also to me!) filing a comment on behalf of Peabody Coal raising constitutional objections to EPA's currently proposed "Clean Power Plan" regulations mentioned above.  The objections raised by Tribe include violation by EPA of "the Constitution's nondelegation doctrine, which bars agencies from exercising legislative power"  -- exactly the subject of the Alito, Scalia and Thomas concurring opinions described aboveTribe also raised additional constitutional issues under the Tenth Amendment and the Takings Clause of the Fifth Amendment.  Revesz continues:

In the estimation of his Harvard Law School colleagues Jody Freeman and Richard Lazarus, “Were Professor Tribe’s name not attached to” these arguments, “no one would take them seriously.” But even if his claims don’t help Peabody in federal court, they are undoubtedly useful in the court of public opinion, where sentiment can be swayed by legal arguments, however weak, from a scholar of Professor Tribe’s reputation. 

You are observing how they use shaming to enforce the official groupthink in the groves of legal academia.  Well, Mr. Revesz, maybe you can call me "nobody," and maybe even Michael Greve and Philip Hamburger, but Alito, Scalia and Thomas?  Really?

My bet is that Revesz does not even know of the existence of Hamburger's book or of the Alito, Scalia and Thomas concurrences in the Perez and Ass'n of American Railroads cases.  Don't worry -- none of the New York Times readers know about those things either!