Twilight of the Administrative State

In 2022, the Supreme Court of the United States decided two cases which go to the heart of administrative agency power in the United States today.

OSHA and the coronavirus

The first case involved an executive mandate issued by the Occupational Safety and Health Administration (OSHA) pursuant to a direction from the President of the United States requiring coronavirus vaccination or continuous testing as a condition of continuing employment.

EPA, Coal and Clean Air

The second case involves the Environmental Protection Agency (EPA) and whether it has the power to control electric power generation under §111(d) of the Clean-Air Act. The challenge has been brought by a coalition of coal companies and the Attorneys General of states in which coal mining and electric power generation from burning coal is a significant economic force. Opposing this coalition are a number of environmental organizations and Attorneys General from states where electric power is generated by means other than burning coal.

Deconstructing the “Administrative State”

The comment by Steve Bannon that the mission of the Trump administration was nothing less than the “deconstruction of the Administrative State” is an accurate interpretation of what can result from these decisions by the Supreme Court of the United States.

The “major-questions” doctrine

For many years, conservative commentators and many jurists have championed the “major-questions” doctrine as the basis for adjudicating actions by administrative agencies which are claimed to be acting in excess of their statutory authority. According to the major-questions doctrine, an administrative agency such as OSHA or the EPA can promulgate and enforce a regulation which has significant political or economic ramifications only if it has legislative permission from Congress to do so.

That was generally the law until 1984 when the Supreme Court decided that if a statute is silent or ambiguous on a point, the courts should defer to the interpretation provided by an executive administrative agency as long as it is “reasonable.”

There can be no doubt that the individual Justices recognize that a decision adopting the major-questions doctrine will be stripping power from the executive branch of government and its administraticve agencies; returning it to the Congress if it will accept responsibility for implementing the legislation it enacts.

Administrative agencies

In 1935, the Supreme Court reluctantly allowed Congress and the President to delegate some of their legislative and executive power to newly formed “Administrative Agencies.” The understanding was that these Agencies were required to provide some basic due process protection to those individuals and businesses affected by their regulations and adjudications. At the time, many scholars and jurists warned that a fourth branch of government never contemplated by the Constitution was being created. History has proved that was indeed the case.

At the dawn of the New Deal in the early 1930s and in response to the economic exigencies of the Great Depression, Congress began to delegate sweeping regulatory powers to Administrative Agencies. Congress ceded legislative powers and the President ceded executive enforcement powers to a civil service bureaucracy which was essentially unaccountable to the American people at the ballot box.

The courts quickly allowed these newly formed “Alphabet Agencies” to assume judicial power to enforce their regulations and executive orders so long as they afforded “parties aggrieved” some semblance of “due process.” This abdication of power by our elected representatives of the People in Congress, the President of the United States, and the federal judiciary appointed for life by the President with the advice and consent of the Senate created a bureaucracy outside of public control and essentially immune from public action. The self-perpetuating, self-serving Agencies run by bureaucrats not accountable to the People are power sources unto themselves, and responsible to no one but themselves. Certainly not to the President and the Congress.

Bureaucracy

One of the strange inconsistencies of bureaucracy is the reluctance of administrative agencies to expose themselves to public scrutiny. The reports of non-governmental public interest organizations, investigative journalists, and even Congressional Committees, chronicle tales of evasion, suppression of information and a general policy of restricting disclosure of public information. Assuming the best of motives on the part of the bureaucrats and the politicians who facilitate and finance them, this course of conduct can only be explained by a kind of totalitarian paternalism inconsistent with American constitutional concepts.

The “non-delegation” doctrine

Recently, several Supreme Court Justices have indicated the desire to revive the doctrine of non-delegation to strike down some administrative regulations much as the Court during the first years of the New Deal used the doctrine to strike down some early initiatives of the New Deal.

After almost 90 years of Administrative Agency growth and empowerment, Justice Elena Kagan noted in a 2019 decision that non-delegation has the potential to render most of contemporary government unconstitutional, “dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

The uncertain future of Administrative Agency power

Those who are most vigorously opposing a return to the major-questions doctrine believe that requiring Administrative Agencies to lay out their intentions in detail before issuing regulations would prevent those regulations from being written.

In certain cases, perhaps, that would not be such a bad idea.