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Activism and the Administrative State



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Mark Levin’s concern is somewhat clearer to me now. He writes: “The massive administrative state Congress has created is no more responsive to democratic decision-making and majority will than the judiciary.” Agreed–though it is considerably more responsive to Congress than is the judiciary. (It is even pretty responsive to members of Congress as individuals; just ask anyone who needed a new passport in a hurry and called his congressman’s office for help.)

Mark goes on: “The federal court docket is clogged with lawsuits brought by tens of thousands of private citizens challenging the decisions of tens of thousands of unelected bureaucrats.” Mark would know better than I whether this is merely thousands, or tens of thousands. But take it as given. He wants to know whether I think it is “judicial activism per se for a court to hear such cases, or, if a court struck down an agency regulation, whether that was judicial activism.” Stating the question that broadly, I’d say my answer is no, it’s not “judicial activism per se” for a federal court to strike down an agency regulation–though there would be a great deal of difference between striking down an agency decision or regulation on statutory grounds, and doing so on constitutional grounds. Wouldn’t there?

Mark also wants me to elaborate on two things I said, and my doing so may illuminate more about the above. The first is that I would generally hold for courts not intervening to answer questions whether Congress has unconstitutionally delegated its legislative authority to the bureaucracy. Take it as a basic constitutional principle that the people have delegated the national legislative power to Congress, which cannot pass it on to others in any secondary delegation. Nevertheless, it does not strike me as an easy thing to say, in many cases, just what powers accorded to administrative agencies are legislative, and what are executive, and what are judicial. Much fun can be had at the Supreme Court’s expense for its having held that certain agencies exercise “quasi-legislative” and “quasi-judicial” powers while not really being either legislatures or courts, but (sort of) executive-branch agencies (Justice Scalia has mocked this sort of reasoning, and it’s fun to read him). But 200 years after he said it, there is still truth in James Madison’s remark that “[e]xperience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces–the legislative, executive, and judiciary.” I don’t know how one would go about demonstrating that a court’s discrimination in these matters is to be preferred to Congress’s discrimination.

Unless, that is, someone’s rights are placed in jeopardy. And that brings me to Mark’s second request for elaboration, of my remark that “the question whether a law is unconstitutional [is] separate from the question whether a federal court has any business ruling that it is.” The business of courts is to vindicate the rights of individuals. But it has never been demonstrated that any individual has a constitutional right, which can be vindicated in a court of law, to be free from the strictures of any and all unconstitutional actions of legislatures or other government agencies. Let us suppose, for instance, that Congress has overstepped the bounds of its power to regulate commerce “among the states,” even its power to undertake those things “necessary and proper” to such regulation. (Readers of this site can need little persuading that such a thing can happen, or has happened!) The question then becomes, is such an overstepping the business of courts, or of Congress itself as it responds (or fails to respond) to the interests and wishes of its constituents? My answer is that it is not the business of courts, unless as an ancillary matter the legislation or duly-authorized executive action happens to violate a constitutional right quite apart from the commerce-power or implied-power issue.

I expect that my answer will not sit well with Mark, who is on record in Men in Black, for instance, as condemning the remade Roosevelt Court for its approval of an extremely broad use of the commerce power after 1937. I teach that episode as a good-news story in the history of the Supreme Court’s power in American life. But Mark and I may have to appeal to our wise editor as to whether our going any further rounds on this subject is a fit use of space at Bench Memos.



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