While Senate Democrats and much of the public have spent the past two Supreme Court confirmation battles obsessing over abortion, judicial conservatives quietly have been laying the groundwork for an assault on the “administrative state.”
That is the buzz phrase to describe the nameless and faceless bureaucracy responsible for most of the rules that now govern America.
Supreme Court Justice Neil Gorsuch went out of his way as an appeals court judge to call attention to the issue, and Justice Brett Kavanaugh has given indications that he, too, is willing to re-examine court precedents that have helped grow the power of unelected bureaucrats.
With those two nominees of President Donald Trump now on the nation’s highest court, American Enterprise Institute scholar Peter Wallison believes there now is a majority in place to begin reversing 3½ decades of jurisprudence on the issue. And he describes the stakes as nothing less than the future of American democracy.
“There will be a time when the American people realize that they are not actually in charge,” Wallison told a group of conservative lawyers in Mobile, Alabama, recently.
Wallison, author of the 2018 book Judicial Fortitude: The Last Chance to Rein In the Administrative State, delivered his remarks to the Mobile chapter of the Federalist Society.
The old Schoolhouse Rock! cartoon taught a generation of American children that Congress makes laws and the executive branch enforces them. The founding fathers viewed the legislative branch, with elected representatives close to the people, as the greatest safeguard against tyranny.
But since the New Deal — and especially since the 1980s — the executive branch has assumed more and more power. With the blessing of Congress and the courts, dozens of administrative agencies and offices write thousands of pages of regulations and rules every year to fill in the gaps left by lawmakers.
These agencies effectively exercise the powers of all three branches. They write regulations that have the effect of laws and are in charge of enforcing them. To top it all off, they also interpret the rules, acting in the role of judges.
Wallison said it amounts to a clear separation-of-powers violation. Beyond that, he said, it has led to an erosion of liberty. He noted that from 1993 through last year, the federal bureaucracy added some 101,000 new rules and regulations.
Americans cannot possibly hope to know all of the edicts that govern them and, Wallison argued, they largely are powerless to shape those mandates. At least with laws written by Congress, voters can toss their representatives at election time.
Wallison said all three branches have been complicit in this transfer of power. Executive branch bureaucrats have been eager to grab power. And Congress, Wallison noted, has been all too happy to write broad laws and then avoid accountability by allowing the bureaucracy to update the statutes as it sees fit.
“Congress has not been worried about, or concerned about, the amount of power they are giving to the executive branch.… Congress is failing to do one of the things the framers expected it to do,” he said.
But perhaps most crucially, Wallison argued, the Supreme Court has allowed the power grab through a series of rulings. The most important of those is a 1984 case, Chevron v. Natural Resources Defense Council, in which the justices instructed lower courts to defer to the judgment of an agency on interpretation of a statute in its jurisdiction as long as that interpretation is reasonable.
Wallison said the case has spawned more litigation than any other Supreme Court precedent. The effect of the ruling and subsequent decisions has been to give a green light to the bureaucracy to assume the powers of the legislative branch, he added.
The courts have the ability to rebalance the division of power among the branches, Wallison said.
“And not just the ability to stop it,” he said. “The responsibility to stop it.”
In doing to, Wallison said, the justices would be fulfilling the “guardians of the Constitution” role that Alexander Hamilton described in Federalist No. 78.
Wallison said the Supreme Court is unlikely to explicitly overturn a precedent so entrenched in the law. But that is not necessary for a course correction, he added.
The justices could adopt the approach taken by two federal appeals courts, which placed greater weight on the first prong of a two-step process laid out in the Chevron decision. Before determining whether an agency interpretation meets the reasonableness standard, judges must first determine whether the statute in question grants an agency the power to pass a regulation.
In a couple of cases, Wallison said, appellate courts have rejected the argument that laws passed by Congress were ambiguous enough to allow agencies to expand regulatory authority in a new direction.
Counting on Congress to reassert its authority is futile, Wallison said. Corrective action is going to have to come from the courts.
“I don’t see any other way for it to be resolved,” he said.
With five originalist judges now on the court, the stars might finally be aligned.
Brendan Kirby is a free-lance journalist based in Mobile, Alabama and author of the blog KirbyOnPolitics.com.