Kennedy Flunks Administrative Law

by Jonathan H. Adler

Senator Kennedy’s questioning this morning about the unitary executive and administrative agencies reveals a profound misunderstanding of bedrock principles of administrative law, including the difference between agencies that are a part of the executive (such as the EPA, FWS, APHIS, etc.) and independent agencies (FTC, CPSC, FCC, Federal Reserve). Judge Alito patiently tried to explain this to him, to no avail. As it happens, I’m in the midst of grading my students’ administrative law exams. Based upon his comments this morning, Senator Kennedy would easily hold down the bottom of the curve.