Bench Memos

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The Court and Administrative Agencies


Let me see if I understand Mark Levin’s question. Putting aside, as he suggests, the question of the constitutionality of Congress’s “delegation” of much rulemaking and adjudicative authority to administrative agencies, Mark wants to know whether I want the Court to refrain from intervening in cases where citizens challenge “decisions by unelected civil servants.” But if we put aside the question of whether an agency is constitutionally authorized to do what it does, then every such case resolves itself into an issue of statutory construction. That is, what does the authorizing legislation require as mandatory for the agency officials, and what does it permit as discretionary, and so forth?

There are better and worse ways to approach such questions–there is a whole body of doctrine about this sort of thing these days under the rubric of the “Chevron standards” (named for a pivotal case involving the oil company)–but I don’t see how the question of judicial activism or restraint regarding constitutional review enters into it. Or perhaps I have misunderstood Mark’s question altogether.

On the basic constitutional question of delegation vs. nondelegation, I would say that I favor noninterference by the courts (though there might be particular cases where I would conclude otherwise). But, again, Mark is explicitly leaving that question aside. So I’ll confess I’m confused about just what he wants to know.


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