Sunset for the Administrative State
The genesis of this webpage was an attack on bureaucracy delivered by Victor John Yannacone, jr., at a number of College campuses on Earth Day 1970. It was updated in 2022 with the page Twilight of the Administrative State after the first serious consideration of the Administrative State by the Supreme Court of the United States.
The Administrative Agency
Congress and many State legislatures, recognizing the delay inherent in the legislative and judicial processes, attempted to meet the needs of modern technological society by creating administrative agencies, to which they ceded some of the powers of the legislative, executive, and judicial branches of government which had been reserved to them under the Constitution in order, they said and perhapas even believed, to give speedy effect to the will of the people as manifest by some act of Congress.
Unfortunately, the administrative approach carried within itself the seeds of its own abuse. Any administrative agency, no matter how well intentioned, is not a court, it is a star chamber—judge, jury, and executioner — all in the public interest, of course.
The narrow jurisdiction and mission-oriented viewpoint of administrative agencies, particularly those charged with industry regulation, and protecting health, safety, and the environment, make them inherently incapable of considering complex interrelated issues such as the Environment, Climate, and a host of other matters of public concern matters with the requisite degree of understanding about the broad effects of their rules and regulations on those businesses and individuals not directly within the scope of their Agency mandate.
Bureaucracy has been defined as organization incapable of correcting its own course of conduct, and it is now clear that the worst offenders in the process of environmental degradation are not ruthless entrepreneurs dedicated to wanton exploitation of our natural resources—the profiteers and abusers of the public interest in the air, water, land and landscape but rather shortsighted, mission-oriented, allegedly public interest agencies.
If we have to find a common denominator for the serious, environmental crises facing all technologically developed countries, regardless of their nominal form of government, it would have to be the entrenched bureaucracies which operate the Administrative Agencies in America or the Ministries in many countries with Parlimentary governments and are essentially immune from criticism or public action. These self-perpetuating, self-sufficient, self-serving bureaus are power sources unto themselves, effectively insulated from the people and responsible to no one but themselves.
The tragedy of Scenic Hudson
The Scenic Hudson Preservation case [354 F.2d 608 (2nd Cir., 1965)] marked the fork in the road for those concerned with the protection of our environment and the legal defense of the biosphere. The Second Circuit Court of Appeals held that the Federal Power Commission should hear evidence on natural values in addition to the economics of electric power generation and distribution before issuing a permit. It was heralded as a win “win” and a boost for fund raising by a number of old-line conservation organizations.
The tragedy of the Scenic Hudson Preservation case occurred when the Scenic Hudson Preservation Committee yielded to the Federal Power Commission jurisdiction over the natural resource aspects of the Consolidated Edison application, cloaking the FPC with a mantle of ecological competence it does not possess and cannot attain within the limits of its statutory mission.
The old-guard, reactionary, established preservationist-conservationists, in their all-consuming desire to avoid challenging established bureaucracy, yielded to the Federal Power Commission the ultimate power to make ecological judgments binding on generations yet unborn.
The final Act in the Scenic Hudson tragedy began in 2023 when the decommissioned Indian Point Nuclear power generating reactors which are the legacy of the Scenic Hudson case began to discharge radioactive waste water heavily contaminated with a number of toxic radionuclides with half lives of many years into the Hudson River hoping they would disappear into the Atlantic Ocean.
It’s all about Sovereignty
Government is all about sovereignty. Sovereignty is a curious example of one of those concepts that are right in one order of things and wrong in another. Ascribing to the nation state, or the transnational or multinational corporations which have usurped the place of national states in many of the functional areas of society, the sovereignty of the people as an independent power, separate and transcendently supreme, which may be exercised upon the body politic from above, inevitably leads to a totalitarian political system.
As the Sixteenth Century ended, sovereignty rose above moral law. The philosophical trail proceeds by simple substitution of a single word from the principle that an act or institution is just which serves the interests of the sovereign (Bodin); of the People (Rousseau); of the state (Hegel); of the Party (Lenin).
The entity which claims sovereignty, be it state, individual ruler, or corporation, exercises power without accountability. It has been observed that, “the power to do all things without accountability is coincident with the sovereignty of God.” This is the concept of sovereignty that represents all that could be wished for by any of the deified potentates, despots, and emperors of ancient times in their most celestial ambitions.
Administrative Agencies
Attributing sovereignty in the absolute sense to the state inevitably leads those individuals who wield the power of the state as sovereign to escape any supervision and control by the people they claim to rule. Sovereignty has been arrogantly assumed by the bureaucracies of industrialized society.
Sovereignty is a curious example of one of those concepts that are right in one order of things and wrong in another. Ascribing to the nation state, or the transnational or multinational corporations which have usurped the place of national states in many of the functional areas of society, the sovereignty of the people as an independent power, separate and transcendently supreme, which may be exercised upon the body politic from above, inevitably leads to a totalitarian political system.
Accountability
The state as a juristic entity, no less than its agencies and officials, must remain accountable to the people. The people, as individuals, always account for their own decisions by their own sweat and blood.
Attributing sovereignty in the absolute sense to the state inevitably leads those individuals who wield the power of the state as sovereignm the Agency officials and bureaucrats, to escape the supervision and control of the people. This has been particularly true among the administrative agencies of the “developed” countries.
One of the strange inconsistencies of bureaucracy is the reluctance of administrative agencies to expose themselves to public scrutiny. A review of the published reports of citizen investigative groups chronicle tales of evasion, suppression of information and a general policy of restricting public information. Attributing the best of motives to bureaucrats and politicians, this course of conduct can only be explained by a kind of totalitarian paternalism inconsistent with American constitutional concepts.
The Administrative State
Lack of accountability by Administrative Agencies and their bureaucrats has created an “Administrative State” in America and throughout the industrialized world.
At the time these agencies were created by Congress which delegated its rule-making authority and the President who delegated executive power, the Supreme Court majority at that time sincerely believed in the premise upon which these administrative agencies were created — that bureaucrats and technocrats were capable of more efficiently managing complex issues than elected officials, but that to do their job the courts had to defer to their expertise especially in matters of fact.
There were many warnings from the start of the New Deal and through the Great Depression that granting essentially unfettered legislative, executive, and quasi-judicial power to bureaucracies which were not subject to public scrutiny and control through the electoral process meant the ultimate creation of an administrative state over which the People of the United States would have little or no direct control.
The response from those who favored managing government operations through administrative agencies was that the Congress could always limit the scope of administrative jurisdiction and the power of administrative agencies.
As the decades passed, the Administrative State grew and the Congress did nothing to limit that growth. Meanwhile, because the power of appointment to these agencies rested with the president and his administration, there was no incentive to limit the exercise of power by the agencies because in practical effect they were executing the policies of the administration without the necessity of bringing those policies under the scrutiny of Congress.
As Congress exercised less scrutiny and control over the administrative agencies they had created, those agencies usurped more of the legislative power than had ever been intended.
Early triumph of the Administrative State
The Administrative State reached its zenith in 1984 when the Supreme Court of the United States decided Chevron v. Natural Resources Defense Council and directed all the lower Courts to defer the reasonable interpretation of an ambiguous statute by a federal agency operating under that statute. The decision in Chevron interpreted an ambiguous clause of the Clean Air Act requiring a definition of “stationary source” which Congress had neglected to provide.
In Chevron, by a unanimous decision of six Justices of the Court, the remaining three taking no part in the decision, delegated the Constitutional power of the Courts to interpret acts of Congress to administrative agencies which were not accountable to the People at the ballot box.
Based on the obvious historical fact that members of Congress and the institution itself were not experts or even meaningfully knowledgeable about many matters about which they legislated, the Supreme Court Justices took the opportunity to allow those they believed to be the “highly trained experts” who worked without any public scrutiny or accountability at the myriad of federal agencies which had sprang up since the Great Depression ravaged the American Free Enterprise system to interpret and implement federal laws.
Fortunately, the end of the omnipotent Administrative State may soon be upon us for many of the reasons articulated by in a prescient article published in 2002 by Professor Jonnathan T. Malot.
The end of the Administrative State is nigh
In 2022, The Supreme Court clearly signaled its intent to stifle the growth of the Administrative State and limit the power of administrative agencies such as the Environmental Protection Agency (EPA), the Occupational Safety & Health Administration (OSHA), the Food & Drug Administration (FDA) and the Centers for Disease Prevention and Control (CDC).
In January 2024, the Supreme Court heard argument in cases directly challenging the Chevron Rule and the policy of Chevron deference in the federal Courts.
Two highly respected federal Courts, the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Court of Appeals for the 1st Circuit (New England) routinely applied Chevron deference to the National Marine Fisheries Service in two cases challenging the Agency rule that required the commercial herring fishing industry to bear the costs of observers on fishing boats. Both Circuit Courts upheld the rule, finding it to be a reasonable interpretation of federal law.
The fishing companies argued that the Chevron doctrine undermines the duty of courts to say what the law is and violates the federal law governing administrative agencies, which requires courts to undertake a fresh review of legal questions but which the Chevron doctrine refuses to do, so long as the Court believes the Agency interpretation was reasonable.
Consider the Great Compromises of the Constitution
Although the Founders of this Country were well aware that the continental monarchies of Europe from Great Britain through Austria-Hungary to Russia as well as the Islamic world of the Sultans and, as we now know, the Chinese Empire and India all operated by means of and through established bureaucracies, they created a tripartite government which recognized the People as sovereign.
Without a personal monarch, the three independent yet mutually dependent Branches of the United States Government under the Constitution each have well-defined roles: The Congress legislated, the President executed the laws which the Congress enacted, and the Supreme Court interpreted those laws when their meaning was unclear, or they were challenged in a “case or controversy.”
While Administrative Agencies may provide their scientific and technical expertise to those responsible for government whether in the Congress, the Executive, or the Courts, they were never intended to make decisions binding on the sovereign American People independent of Congress, the President, and the Supreme Court.
Even when the Justices of the Supreme Court disagree among themselves, as they often do, it is up to the Congress to do what they were elected by the People to do, resolve the ambiguities that they created. Congress cannot ignore its obligations to the People and cannot be allowed to abdicate their responsibilities to legions of faceless bureaucrats. The idea of allowing an administrative agency to be a “tie-breaker” when the Supreme Court Justices disagree as Justice Sonia Sotomayor suggested during oral argument should be anathema.
Historically, the Supreme Court has decided cases, sometimes erroneously, on complex issues which have divided the Country.
[Dred Scott v. John F. A. Sandford, 60 U.S. 393, 19 How. 393; 15 L. Ed. 691; 1856 WL 8721; 1856 U.S. LEXIS 472] and [Brown, et al. v. Board of Education of Topeka, et al., 347 U.S. 483, 74 S. Ct. 686; 98 L. Ed. 873; 1954 U.S. LEXIS 2094; 38 A.L.R.2d 1180] for example. They did not need an Agency to make their decisions then and they do not need Agencies to make their decisions for them now.
When the Supreme Court eventually abolishes its Chevron rule, there may be many challenges to federal Administrative Agency Rules and the Courts will be busy deciding them. Increasing the judicial workload, however, does not justify the Judiciary in ignoring its responsibility to the People under the Constitution.
The Administrative State is passing and by the end of this Supreme Court Term in June, 2024, we should know whether it will ever return.