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Administrative Law

1930s Redux: The Administrative State Under Siege

The full text of this Foreword may be found by clicking the PDF link to the left.

Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal. President Trump’s administration has proclaimed the “deconstruction of the administrative state” to be one of its main objectives.1×1. See Philip Rucker & Robert Costa, Bannon Vows a Daily Fight for “Deconstruction of the Administrative State,” Wash. Post (Feb. 23, 2017), https://www.washingtonpost.com/politics/top-wh-strategist-vows-a-daily-fight-for-deconstruction-of-the-administrative-state/2017/02/23/03f6b8da-f9ea-11e6-bf01-d47f8cf9b643_story.html [https://perma.cc/8KJ3-5TRR]. Although the Trump Administration official who made this proclamation, Steve Bannon, has since been removed from his position as President Trump’s Chief Strategist, that removal is unlikely to result in a large-scale change in the Trump Administration’s objectives with respect to the administrative state. See Donald J. Trump (@realDonaldTrump), Twitter (Aug. 29, 2017, 5:26 AM), https://twitter.com/realdonaldtrump/status/902507855584092160?lang=en [https://perma.cc/8LFX-LCGH] (reiterating the need to “reduce [the] size of government”); see also Josh Dawsey & Nolan D. McCaskill, Bannon Out as White House Chief Strategist, Politico (Aug. 18, 2017, 6:16 PM), https://www.politico.com/story/2017/08/18/bannon-out-as-white-house-chief-strategist-241786 [https://perma.cc/DJH2-JJ5D]. Early Trump executive actions quickly delivered on this pledge, with a wide array of antiregulatory actions and a budget proposing to slash many agencies’ funding.2×2. See infra pp. 9–11. Invoking the long-dormant Congressional Review Act3×3. 5 U.S.C. §§ 801–808 (2012). (CRA), the Republican-controlled Congress has eagerly repealed numerous regulations promulgated late in the Obama Administration.4×4. See infra pp. 10–11. Other major legislative and regulatory repeals are pending, and bills that would impose the most significant restrictions on administrative governance since the Administrative Procedure Act (APA) was adopted in 1946 — like the proposed Regulatory Accountability Act (RAA) — now stand a chance of enactment.5×5. See infra section I.A; see also Regulatory Accountability Act of 2017, S. 951, 115th Cong. (2017); Regulatory Accountability Act of 2017, H.R. 5, 115th Cong. (2017). This resistance to administrative government reflects antigovernment themes that have been a consistent presence in national politics since President Reagan’s election in 1980.6×6. See infra p. 14. But the immediate trigger for the current resurgence of attacks on the administrative state is the national regulatory and administrative expansion that took place under President Obama.7×7. See, e.g., Theda Skocpol & Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism 5–10, 31–32, 77–82 (2012) (tying Tea Party mobilization to President Obama’s progressive policy agenda); Zeke J. Miller, President Trump’s Lawyers Plan a White House Legal Attack on Federal Agency Power, Time (Mar. 13, 2017), http://time.com/4700311/donald-trump-white-house-counsel-steve-bannon/ [https://perma.cc/M7SP-JFN7] (“But the fight against [the administrative state’s] growth became a crusade during the Obama years, particularly in conservative legal circles as they watched the former president rel[y] on regulatory action to circumvent an obstructionist Congress.”); see also Robert Moffit, Todd Gaziano & Joseph Postell, How to Limit Government in the Age of Obama, Heritage Found. (June 25, 2013), http://www.heritage.org/political-process/report/how-limit-government-the-age-obama [https://perma.cc‌/XLX6-PB9G] (discussing tactics to fight against President Obama’s regulatory policy through Congress and the courts).

Of particular relevance here, an attack on the national administrative state is also evident at the Supreme Court. The anti-administrative voices are fewer on the Court than in the political sphere and often speak in separate opinions, but they are increasingly prominent.8×8. Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 42–43. Led by Justice Thomas, with Chief Justice Roberts, Justice Alito, and now Justice Gorsuch sounding similar complaints, they have attacked the modern administrative state as a threat to liberty and democracy and suggested that its central features may be unconstitutional.9×9. See infra sections I.B.1–3, pp. 17–31. Conservative legal scholars have joined the fray, issuing a number of academic attacks on the constitutionality of the administrative state that conservative jurists then feature prominently in their opinions.10×10. See infra section I.B.4, pp. 31–33. These judicial attacks on administrative governance share several key characteristics: they are strong on rhetorical criticism of administrative government out of proportion to their bottom-line results; they oppose administration and bureaucracy, but not greater presidential power; they advocate a greater role for the courts to defend individual liberty against the ever-expanding national state; and they regularly condemn contemporary national government for being at odds with the constitutional structure the Framers created, though rarely — with the marked exception of Justice Thomas — do they develop this originalist argument with any rigor.11×11. See infra section I.C, pp. 33–46.

These features, particularly the strong rhetorical condemnation of administrative government, typify what I call here contemporary anti-administrativism. The presence of such rhetorical anti-administrativism in the political sphere is not surprising, but its appearance in judicial opinions is more striking. This rhetorical anti-administrativism forms a notable link between the contemporary political and judicial attacks on national administrative government. Further connecting these two is the political flavor of many of the lawsuits underlying the current judicial attacks, as well as a shared network of conservative lawyers, organizations, academics, and funders involved in both.12×12. See infra sections I.C, pp. 33–46; II.B, pp. 62–71.

The 2016 Term saw few cases embodying the judicial attacks on administrative governance and administrative law doctrines that have surfaced in recent years. Nonetheless, anti-administrativism was central to the Term’s most important event: the appointment of Justice Gorsuch to the Court. In a concurring opinion issued shortly before his nomination, then-Judge Gorsuch staked out a strongly anti-administrative position. He warned against “permit[ting] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design,” and drew a straight line from such institutional expansion to “governmental encroachment on the people’s liberties.”13×13. Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring). Gorsuch had signaled such concerns before, though not quite as vociferously. See Caring Hearts Pers. Home Servs., Inc. v. Burwell, 824 F.3d 968, 969 (10th Cir. 2016); De Niz Robles v. Lynch, 803 F.3d 1165, 1171 (10th Cir. 2015); Neil M. Gorsuch, Lecture, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905, 911–15 (2016). These anti-administrative views quickly became a centerpiece of Gorsuch’s Senate confirmation hearings — surely never before have so many senators spoken at such length about the Chevron14×14. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). doctrine of judicial deference to administrative statutory interpretations.15×15. In their brief opening statements, three of the eight Democratic senators expressed their concerns over then-Judge Gorsuch’s views on Chevron. See Nomination of the Honorable Neil M. Gorsuch to Be an Associate Justice of the Supreme Court of the United States, S. Comm. on the Judiciary at 42:33 (Mar. 20, 2017) [hereinafter Gorsuch Confirmation Hearings (Day 1)], https://www.judiciary.senate.gov/hearings/watch?hearingid=DD159112-5056-A066-6024-CF83920A9E17 [https://perma.cc‌/DKR7-2M9E] (opening statement of Sen. Feinstein); id. at 2:06:49 (opening statement of Sen. Klobuchar); id. at 2:29:01 (opening statement of Sen. Franken).

Whether these anti-administrative attacks will ultimately prove successful — and which ones — remains to be seen. The lack of administrative retraction under President Reagan offers reason for doubt that major politically imposed transformations will occur, and President Trump’s campaign promises for infrastructure development, an enhanced military, and a crackdown on illegal immigration all entail the administrative state’s expansion, not its deconstruction. On the judicial front, the most radical constitutional challenges so far have gained little traction, with majority support limited to claims that tinker with the administrative state at the margin.16×16. See infra section I.D, pp. 46–51. With Justice Gorsuch on the Court, some constitutionally rooted pullback in deference doctrines appears increasingly likely.17×17. Justice Gorsuch has expressed more open hostility to doctrines such as Chevron than his predecessor, Justice Scalia, did. See Emily Bazelon & Eric Posner, The Government Gorsuch Wants to Undo, N.Y. Times (Apr. 1, 2017), https://www.nytimes.com/2017/04/01/sunday-review/the-government-gorsuch-wants-to-undo.html [https://perma.cc/S5E5-A6UR]. But whether these doctrinal tweaks will make much of a difference in practice is a matter of substantial dispute.18×18. See infra pp. 48–49. Compare Adrian Vermeule, The Separation of Powers Restoration Act (in the Age of Trump), Yale J. on Reg.: Notice & Comment (Nov. 10, 2016), http://yalejreg.com/nc/the-separation-of-powers-restoration-act-in-the-age-of-trump-by-adrian-vermeule/ [https://perma.cc/3VuC-593L] (noting that even without Chevron, courts “might decide that deference just is what the statutory law commands”), with Bazelon & Posner, supra note 17 (arguing that without Chevron ambiguous statutory text may have to be sent back to Congress “to redo or not”).

Yet dismissing the present anti-administrative moment as a passing craze with little long-term impact would be a mistake. Enactment of measures like the RAA, regulatory rollbacks, and significant cutbacks in agency funding could have a lasting effect on the administrative state’s functioning and capacity. Challenges to administrative adjudication on the horizon may portend more dramatic judicial decisions, and some seemingly limited constitutional challenges could yield significant administrative disruption. Even kept to a vocal minority, moreover, constitutional attacks can have an outsized effect by sowing doubts about administrative legitimacy and thereby limiting the progressive potential of — and public support for — administrative government in the future. And the vocal minority on the courts is likely to grow so long as the political branches remain in conservative hands and openly anti-administrative organizations dominate the judicial appointments process.19×19. Jeffrey Toobin, The Conservative Pipeline to the Supreme Court, New Yorker (Apr. 17, 2017), http://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court [https://perma.cc/DW43-NYXF] (describing the role of Leonard Leo, Executive Vice President of the Federalist Society, in the Trump Administration’s judicial-selection process); About Heritage, Heritage Found., http://www.heritage.org/about-heritage/impact [http://perma.cc/TC7B-KB4E] (“Since our founding in 1973, The Heritage Foundation has been working to advance the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.”). For an example of the Federalist Society’s views on administrative government, see generally Liberty’s Nemesis: The Unchecked Expansion of the State (Dean Reuter & John Yoo eds., 2016). The national administrative state is the subject of the Federalist Society’s annual convention this year. See 2017 National Lawyers Convention: Administrative Agencies and the Regulatory State, Federalist Soc’y for L. & Pub. Pol’y Stud., https://www.fed-soc.org/events/detail/2017-national-lawyers-convention
[https://perma.cc/9FVD-69TR].
The Trump Administration inherited an extraordinarily large number of judicial vacancies — more than any recent President since Bill Clinton — and will likely have additional Supreme Court vacancies to fill.20×20. See Jonathan H. Adler, How President Trump Will Shape the Federal Courts, Wash. Post: Volokh Conspiracy (Jan. 20, 2017), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/20/how-president-trump-will-shape-the-federal-courts/ [https://perma.cc/PAD4-2D4P]; Ryan Lovelace, Trump Adviser Leonard Leo Details Plans to Overhaul Judiciary, Wash. Examiner (May 12, 2017, 2:00 PM), http://www.washingtonexaminer.com/trump-adviser-leonard-leo-details-plans-to-overhaul-judiciary/article/2622956 [https://perma.cc/UPT3-6HAW] (noting that Trump already has 134 judicial openings to fill and may eventually have as many as 200, as well as three Supreme Court vacancies). The potential thus exists for a significant erosion of administrative power, albeit perhaps one achieved more incrementally and more targeted to particular substantive areas than a sudden or broad retraction in the administrative state.

Equally important, the current judicial attack on the administrative state merits attention because of the potential harm it poses for the Court and for constitutional law. Although resistance to strong central government has a long legacy in the United States, the real forebears of today’s anti-administrative movement are not the Framers but rather the conservative opponents of an expanding national bureaucracy in the 1930s. Like today, the 1930s attack on “agency government” took on a strongly constitutional and legal cast, laced with rhetorical condemnation of bureaucratic tyranny and administrative absolutism.21×21. See infra section II.A, pp. 52–62. These efforts were plainly political, fueled by business and legal interests deeply opposed to pro-labor regulation and economic planning. The Supreme Court’s constitutional opposition to early New Deal measures carried heavy political salience as well, triggering President Franklin Delano Roosevelt’s contentious plan to pack the Court.22×22. See id.; see also William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt 132–62 (1995) (discussing President Roosevelt’s “court-packing” plan and the controversy surrounding it). A similar political aspect is inseparable from the contemporary administrative attack, as the nomination process for Justice Gorsuch demonstrated.23×23. See infra section II.B, pp. 62–71.

To acknowledge the political cast of contemporary anti-administrativism is not to question that genuine constitutional concerns animate it. Such close intertwining of the political and constitutional is characteristic of efforts to construct a new institutional order — and was as true of progressive efforts to build out the New Deal administrative state in the 1930s as it is of contemporary anti-administrativism’s effort to reign in that state today. But recognizing this political cast, and the parallels to the 1930s conservative attacks on the New Deal, demonstrates anti-administrativism’s radical potential. It also underscores the extent to which judicial opinions that decry the dangers of the ever-expanding administrative state risk reinforcing the intense politicization of the Court — a result particularly hard to justify when (at least so far) these opinions’ bottom-line impact does not match their polarizing rhetoric.

Perhaps most problematic, anti-administrativism misdiagnoses the administrative state’s constitutional status. Anti-administrativists paint the administrative state as fundamentally at odds with the Constitution’s separation of powers system, combining together in agencies the legislative, executive, and judicial authorities that the Constitution vests in different branches and producing unaccountable and aggrandized power in the process. In fact, however, the administrative state is essential for actualizing constitutional separation of powers today, serving both to constrain executive power and to mitigate the dangers of presidential unilateralism while also enabling effective governance. Far from being constitutionally suspect, the administrative state thus yields important constitutional benefits. Anti-administrativists fail to recognize that the key administrative state features that they condemn, such as bureaucracy with its internal oversight mechanisms and expert civil service, are essential for the accountable, constrained, and effective exercise of executive power.

Even further, the administrative state today is constitutionally obligatory, given the broad delegations of authority to the executive branch that represent the central reality of contemporary national government. Those delegations are necessary given the economic, social, scientific, and technological realities of our day. Not surprisingly, therefore, very few anti-administrativists are willing to call such delegation of power into serious constitutional question. But they fail to realize that delegation comes with substantial constitutional strings attached. In particular, many of the administrative state’s features that anti-administrativists decry follow as necessary consequences of delegation.

By refusing to recognize the administrative state’s essential place in our constitutional order, contemporary anti-administrativism forestalls development of a separation of powers analysis better tailored to the reality of current government. Rather than laying siege to the administrative state, such an analysis would seek to maximize the constitutional benefits that the administrative state has to offer. And it would reorient constitutional analysis to considering not just constitutional constraints on government but also constitutional obligations to govern.

Part I of what follows describes the current attacks on the administrative state and assesses their central analytic moves, focusing in particular on judicial anti-administrativism. It then takes up the question of whether the current attack is likely to make a difference, arguing that this attack holds greater significance for national administrative governance than might at first appear. Part II adopts a historical lens, identifying contemporary anti-administrativism as the latest episode in a conservative campaign against administrative governance that stretches back to the early twentieth century, in particular to battles over the New Deal in the 1930s. After highlighting parallels between the contemporary attacks and 1930s efforts to hamstring New Deal administrative agencies, Part II draws out cautionary historical lessons for the Court. Part III turns to analyzing the constitutional functions of the administrative state. Here, too, the 1930s hold important lessons, underscoring the administrative state’s constitutional role in both enabling and constraining executive power. Recognizing these constitutional functions opens the door to a very different account of the administrative state’s constitutional status from what the anti-administrativists offer. This Part then takes the constitutional argument a step further, contending that the contemporary reality of delegation makes core features of the administrative state constitutionally obligatory.

A word on terminology at the outset: The term “administrative state” is frequently bandied about, but often carries very different meanings. In promising to deconstruct the administrative state, for instance, the Trump Administration presumably does not mean to include the mechanisms of bureaucratic power that allow the President to oversee agency actions. As used here, the administrative state includes those oversight mechanisms, as well as other core features of national administrative governance: agencies wielding broad discretion through a combination of rulemaking, adjudication, enforcement, and managerial functions; the personnel who perform these activities, from the civil service and professional staff through to political appointees, agency heads, and White House overseers; and the institutional arrangements and issuances that help structure these activities. In short, it includes all the actors and activities involved in fashioning and implementing national regulation and administration — including that which occurs in hybrid forms and spans traditional public-private and nation-state boundaries.24×24. See Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841, 855–63 (2014). An unfortunate implication of invoking the administrative state writ large is that it conveys the idea of a single monolithic entity, whereas in reality national administrative government contains within it tremendous variety, cooperation, and rivalry — a pluralistic dynamic that obtains within individual agencies as well. The administrative state writ large is nonetheless a helpful analytic conceit here as a stand-in for the archetypal characteristics of national administrative government now under attack.

 


* Stanley H. Fuld Professor of Law, Columbia Law School. Many thanks to Jessica Bulman-Pozen, Ariela Dubler, Dick Fallon, Barry Friedman, Jesse Furman, Michael Hyman, Vicki Jackson, Jeremy Kessler, Tom Merrill, Henry Monaghan, Anne Joseph O’Connell, Eric Posner, David Pozen, Daphna Renan, Neil Siegel, Kevin Stack, Peter Strauss, Kristen Underhill, Adrian Vermeule, Laura Weinrib, as well as commenters at faculty workshops at Chicago, Duke, Harvard, and Penn law schools, for their very helpful (and speedy!) comments and suggestions — especially to those who willingly undertook multiple reads. Zachary Bannon and Eve Levin provided excellent research assistance. Particular thanks to the Harvard Law Review editorial board and staff for their excellent editorial suggestions and efforts in publishing this piece.

Recommended Citation: Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1 (2017).