1 year ago

Is this the summer of our discontent?

By Is this the summer of our discontent?

Adherents of free markets and limited government have much to be gloomy about this year. Is now the summer of our discontent, made piteous winter by the loss of Scalia, increasing terrorist attacks, and concern about whether the next president will exceed the abuses of the past? Our concerns run deep, but we who fight for liberty must never give into despair, and fortunately, there are other currents in the liberty movement to encourage us and help focus our efforts.

Ancient Athenians faced the same struggle to defend their democracy
Ancient Athenians faced similar struggles to defend their democracy against tyrants to those we face today

One area of continued progress is the intellectual ferment and accompanying legislative and judicial actions that help cabin the growth and arbitrary power of the administrative state. PLF’s unanimous Supreme Court victory a few months ago in Hawkes v. U.S. Army Corps of Engineers, which expanded the right to obtain judicial review of agency decisions that violate individual rights, is part of this trend. It’s worth reflecting on other developments in recent years that lead in the same direction.

Philip Hamburger’s lengthy book, Is Administrative Law Unlawful?, helped reinvigorate the scholarly debate on administrative power in 2014. The interest it has received reflects how well it complemented other academic work and how hungry thought leaders in the academy, think tanks, and elsewhere were for its historical analysis of executive power unmoored from our constitutional tradition. Hamburger forcefully argues that what constitutes modern “administrative law” in America is indeed unlawful, i.e., unconstitutional. His proof undermines the legitimacy of much of American administrative practice and it has spawned numerous conferences and additional articles on both sides of the debate.

In the spring of 2015, there was further excitement in reform circles when several Supreme Court justices wrote or joined unusual concurring opinions in two cases questioning existing legal doctrines that require deference to agency interpretations of law and sanction extremely broad delegations by Congress to those agencies to issue regulations. Many commentators saw the opinions as placeholders for future cases when those justices hoped there would be a majority to scale back or overturn these doctrines that increase the power of the regulatory bureaucracy at the expense of individual liberty.

Subsequent decisions confirmed that the justices were open to arguments that would scale back the power or discretion of administrative agencies. For example, in late June of 2015, a Supreme Court majority ruled in Michigan v. EPA (2015) that the EPA’s failure to properly take costs into account in regulating certain toxic power plant emissions was not only unreasonable, it was irrational. As helpful as it is to expand access to courts to challenge unreasonable and wrongful agency action, that would be of limited utility if courts then deferred to the agency’s judgment when they decided the ultimate matter in dispute. The Michigan v. EPA result did not represent a tremendous sea change, but it was an unmistakable sign that some justices were willing to be more rigorous in their judicial review.

The intellectual reform climate, the Supreme Court’s openness to it, and some rather extravagant assertions of regulatory power by agencies during the Obama administration also helped spur legislative action in the last year to limit the power of administrative agencies. The House passed two bills that would affect sweeping reform, although these and related companion bills have not yet received Senate floor votes. The Regulations from the Executive in Need of Scrutiny Act of 2015 (REINS), H.R. 427, passed the house a year ago by a vote of 243-165. It would effectively amend hundreds of laws granting federal agencies discretion to issue regulations by requiring “major” rules (as defined by the costs they imposed) to be enacted as laws by Congress before going into effect. That would constitute a dramatic return of democratic accountability for the body of legal commands that most often regulates us today.

Earlier this month, the House also passed the Separation of Powers Restoration Act of 2016 (SPRA), H.R. 4768, by a vote of 243-165. It would overrule a court-created doctrine under which federal courts usually defer to executive agency interpretations of the statutes they administer, especially when they issue regulations. This is known as “Chevron deference,” based on a Supreme Court decision in 1984. SPRA would amend the Administrative Procedure Act and require federal courts to decide all questions of constitutional and statutory interpretation “de novo,” without any deference to agency constructions.

Although passage by one House does not make a law, there is still an information feedback loop between the courts and Congress that sometimes affects their respective agendas. Congress is more likely to consider reform bills like REINS and SPRA if the courts invite it. And the Supreme Court may be more likely to hear a case concerning deference to agency interpretations of law if the justices think there is public support for less judicial deference. House action is a signal of public support, even if the Senate does not yet have a supermajority to override a filibuster. Moreover, the Chevron doctrine that SPRA would overrule was based in part on the notion that Congress wanted the courts to defer to agency interpretations of law. If Congress is trying to refute that notion, the Supreme Court’s continued adherence to such doctrines is undermined.

It should be no surprise that PLF is increasingly filing cases and appeals that advance reform of the administrative state in conformity with individual rights and the constitutional separation of powers. PLF recently filed a petition seeking Supreme Court review in a new case that raises these issues, and it is about to file another. Liberty Blog followers will be the first to read about them.

Those who defend liberty must remain vigilant, but we should still enjoy our summer pastimes. And as they do every four years, the pageantry and inspiring athletic stories from the summer Olympics may serve as a pleasant interlude to the fight for freedom we must renew when the games are over.

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