The Judiciary Can Corral the Administrative State, but Only the People Themselves Can Tame It

madison
James Madison

The executive power of this nation would, James Madison wrote in Federalist 48, be “restrained” within a “narrow compass.” The judicial power could, in his view, be “described by landmarks still less uncertain.” It was against “the enterprising ambition” of the legislature, he believed, that “the people ought to indulge all their jealousy and exhaust all their precautions.” Unless the other departments and the people remained vigilant, Madison warned, the legislature would draw “all power into its impetuous vortex.”

This outlook was informed by the excesses of the ancient Athenian mob, which, as Madison put it in Federalist 63, decreed “to the same citizens the hemlock on one day and statues on the next.” But although he still talks, on occasion, like a fanatic, the modern congressman pushes much of his power away with both hands. That power is gladly accepted by the modern bureaucrat, an upstart bent on steering the ship of state off the course set by the Founders.

It works like this. Congress passes a law directing a government agency to create a “reasonable” rule. The agency issues a terse regulation, one nearly as vague as the original law. The agency then “interprets” the regulation in letters and memoranda. Over the years the agency publishes hundreds of pages of exegesis. Although each new statement claims merely to offer “guidance,” it otherwise reads like an edict. Anyone who defies the “guidance” is sued by the agency in court or, worse, the agency’s own tribunal.

Take, for example, Title IX. In 1972 Congress passed, and President Nixon signed, a law declaring that no one shall, “on the basis of sex,” be excluded from, or subjected to discrimination in, “any education program or activity receiving federal financial assistance.” The idea was to stop schools from applying gender quotas or excluding girls from advanced classes, after-school clubs, and the like. But the Department of Education’s Office of Civil Rights had grander designs. It has claimed for itself the power to regulate student-on-student behavior, to impose detailed codes of conduct, and to lower the burden of proof in schools’ grievance hearings.

This kind of ministerial brigandage is occurring all across the vast acronym jungle—EPA, FDA, EEOC, FDIC, et al.—of the administrative state. Our civil servants have gone on a frolic of their own. What Congress authorized them to do is irrelevant. The vindication of their personal morality is all. Yet they are, to be sure, merely seizing power relinquished, in open-ended laws, by a listless legislature.

Congress’s desertion is not just peculiar; it is unconstitutional. Article I, section 1 of the Constitution vests “all legislative Powers” in Congress. This means that Congress must make society’s important policy decisions. The legislators “could not,” wrote Justice Scalia, “even if they wished, vote all power to the President and adjourn sine die.” Congress may set a route and leave to an agency the details of the journey; but it may not simply announce an aspiration and then let an agency pick the destination.

Starting from the correct premise that this is a difficult line to draw, the judiciary has reached the untenable conclusion that no line is needed. It has declared that Congress need supply an agency merely an “intelligible principle” by which to govern. Put another way, Congress may at present send an agency any instruction that is not literally unintelligible. It may tell the agency, “Act in the public interest.”

It will not do to say that the President’s being elected legitimizes broad congressional delegations, if not agencies’ rogue prerogatives. By that logic, Article I itself says no more than “Act in the public interest.” But that is not what Article I says. It says, rather, that legislative power is vested in the legislature. The only thing those who blithely disregard the text of the Constitution legitimize is blithe disregard for the text of the Constitution. If you scratch out these words, why may not the next man scratch out those ones? Thus do insolence and strong hand prevail.

And if he really lent agencies his democratic legitimacy, the President would hold sway over them. Yet the very people who push the “legitimacy” argument tend also to champion agency independence. It is almost as though the true goal is to enthrone the bureaucrats and then protect them from democracy.

Indeed that goal—the creation of insulated bureaucratic authority—is what drove Congress to invite administrators to issue, interpret, and enforce so many rules. The separation of powers would, Madison thought, spur competition among the government’s three branches. He and the other Founders did not foresee that, one day, rivalry of party would overshadow rivalry of department. The progressive legislators of the early 20th century were happy to cede their power to progressive executive officials. Our representatives started to place political expediency over constitutional duty. They quickly made a habit of it.

In his new book, Judicial Fortitude, Peter Wallison looks to the judiciary to curb the administrative state. “Without strict judicial oversight,” he writes, “the agencies of the administrative state pose a continual challenge to the rule of law.” He is right that the courts can do more. They can set modest limits on delegation, and augment the President’s grip on his sprawling establishment. This year, in Kisor v. Wilkie, the Supreme Court will likely check an agency’s ability to add implausible glosses to its regulations. (WLF will submit an amicus brief.) Some day the Court should go a step farther and overturn Chevron v. Natural Resources Defense Council, which grants an agency generous discretion in interpreting statutes.

But the judiciary cannot restore the constitutional order. The courts cannot force Congress to defend itself. Nor should we want them to. Far from adhering to “landmarks still less uncertain,” many judges create new rights and impose new limits. They foist on society their evolving standards of decency. The most overbearing of them act like medieval bishops. The last thing the judiciary needs is more jurisdiction. The rule of lawyers is as foreign to the Constitution as the rule of bureaucrats.

The truth is that the administrative state shall long maintain its empire. It will fall only when the people hold Congress to its obligations, and there is no sign that the people even know what those obligations are. So it goes. “To suppose that any form of government will secure liberty or happiness without any virtue in the people,” Madison wrote, “is a chimerical idea.”

Also published by Forbes.com on WLF’s contributor page.

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