Bench Memos

Law & the Courts

‘Confronting the Administrative State’

That’s the title of an excellent essay by constitutional lawyer Charles J. Cooper in the new issue of National Affairs (the quarterly journal edited by my Ethics and Public Policy Center colleague Yuval Levin).

In order to explain how four separate opinions by Justice Thomas last term “attack the very existence of the modern administrative state,” Cooper sketches how the progressive administrative state, combining executive, legislative, and judicial powers, arose over the last century. Whereas our constitutional system of separated powers built on the understanding that man is corrupted by power, the progressives, led by Woodrow Wilson, put their trust in experts: “In Wilson’s view, ‘the greater [an administrator’s] power the less likely is he to abuse it.’” (Brackets in article.) As the Supreme Court permitted the consolidation of powers in the bureaucracy, it initially substituted its own judicial review of agency action for the Constitution’s checks and balances. But in its 1984 decision in Chevron v. Natural Resources Defense Council, the Court adopted a rule of deferring to an agency’s reasonable interpretation of an ambiguous statute, and in 1997 it extended that deference to an agency’s interpretation of its own rules.

The “bottom line,” Cooper argues, “is that our constitutional order has been subverted, perhaps irreversibly”:

First, the administrative state is free to exercise legislative power, delegated by Congress, over virtually every aspect of life, and Congress need not provide even so much as an “intelligible principle” to constrain its regulatory discretion. Second, the administrative state has the last word, binding even on the Supreme Court, on what ambiguous statutory provisions mean, including on the jurisdictional question of whether Congress actually authorized it to interpret the statute in the first place. And, finally, the administrative state has executive power to enforce its laws, as it alone has interpreted them, liberated from any meaningful review by the courts and often from any meaningful control by the president. It can truly be said that, in the main pursuits of everyday life, we are ruled by a one-branch government. And the “experts” who run it are accountable to no one: They are not elected, nor are they controlled by those who are elected. And they certainly are not angels.

Lamenting that Justice Thomas’s “lonely opinions underscore that the Court is unlikely to restore the founders’ understanding of our constitutional structure in the foreseeable future,” Cooper proposes use of the Article V convention process. Under that process, Congress “shall call a Convention for proposing Amendments” when the legislatures of two-thirds of the states have applied for such a convention. Any amendment that is proposed would then need to be ratified by three-fourths of the states in order to become part of the Constitution.

Some conservatives have long opposed the Article V convention process out of fears of a “runaway” convention. Those fears seem to me misplaced, for two reasons: First, the subsequent ratification requirement provides an ample safeguard against any ill-considered proposals. Second, we already have a runaway convention that, with little thought, effectively proposes and ratifies amendments in one fell swoop: the Supreme Court.


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