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Enabling Congress to Control the Administrative State

Recently, I had the privilege to speak about my ideas on establishing a stricter separation of powers for administrative agencies based on my article Classical Liberal Administrative Law in a Progressive World at the Federalist Society Faculty Conference.

As with many Federalist Society Conferences, the panel represented a diversity of political viewpoints. In fact, one might wonder whether it was too oriented towards the left side of the spectrum.

As I saw it, there was a strong liberal (Jack Beermann), a more moderate liberal (Kathryn Kovacs), a moderate right winger (Chris Walker), and yours truly, who represented the less moderate right. If I understood his position correctly, Chris Walker accepts the basic framework of the administrative state, but wants to tweak some things to improve how it operates. I agree with his proposals, but I don’t think they go far enough. I advocate a much stronger system of separation of powers, as I have argued on this blog.

In this talk, I advocate a Congressional approval procedure for major regulations (the REINS Act), Article III administrative courts, and the elimination of legal deference (including Chevron, Auer, and Skidmore deference).  (My presentation begins at the 27 minute point.) I think my position was a bit much for some of the participants. At one point, I said that I was crazy enough not merely to support eliminating Chevron and Auer, but also Skidmore, which most people who favor eliminating Chevron and Auer seek to maintain. Jack Beermann said that he agreed with one part of my presentation – that I was crazy. It’s always nice to see civility in the academy. But I was happy to push back against Jack on his presentation.

While my position was clearly at the rightward extreme of the panel, it is not always thought of that way. When I was seeking comments on my paper, I sent it to Phillip Hamburger and Gary Lawson, who were both gracious enough to provide comments. Both thought that I was too moderate.

Overall, the panel provides a good overview of the different positions on whether, and if so, how administrative agencies should be reformed.

Reader Discussion

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on January 30, 2018 at 09:32:21 am

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Enabling Congress to Control the Administrative State | Top 100 Blog Review
on January 30, 2018 at 09:51:29 am

If Hamburger thinks you "too moderate": you're too moderate. QED.

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DEREK SIMMONS
on January 30, 2018 at 10:52:01 am

Nice presentation.

With all due respect to Prof. Beermann, and no offense intended to him, but when you mentioned the Reins Act for the 1st time, I thought it seemed to incite an electric shock under his seat, and thereafter send him into something very much resembling a catatonic state for much of the remainder of your talk. Your mention of separation of powers, seemed to separate his heart from his chest....

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Paul Binotto
on January 30, 2018 at 13:56:51 pm

No doubt, the fact that an Administration Agency was able to add a contraception mandate to The Health Care Bill, after it was passed and became Law, thus unconstitutionally changing both the letter and the spirit of the law, while violating both the First and Eighth Amendments, simultaneously, is evidence enough that The Administrative State is out of control.

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Nancy
on January 31, 2018 at 09:08:22 am

If I might tweak your critique slightly, I think the inclusion of that mandate was well within the spirit of the law as a medically necessary means of preventing/mitigating certain health problems. Where the law went seriously awry was in the definition of who may claim a conscience exemption, and the specific means by which claimants were forced to exercise it. (With regard to the latter, I'm of course referring to the Little Sisters of the Poor and the infamous form which forced them to provide contraception via a subcontractor, as it were.)

HHS and the White House doggedly refused to provide the Little Sisters with the least burdensome form of compliance, rubbing the sisters' noses in the fact that they were going to provide contraception to their employees and sign on the dotted line that they were OK with it. It was odious, to me--a purely spiteful act expressing contempt for the Sisters' beliefs. We should all be grateful to the folks at Becket who defended them.

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Chris Lynch
on February 10, 2018 at 17:13:42 pm

I would even go further than that. I would amend the Constitution to create an Administrative Branch of government. The Administrative Branch would have the power to make legally binding regulations, but all such regulations must be approved just like regular legislation. The Administrative Branch would have no enforcement powers and any individual wielding regulation-making power would have to be appointed by the president and approved by a majority vote of Congress (both houses) and could only serve for an unrenewable term of years (10 seems like a good number). Administrative Branch agencies would, furthermore, be under the direction and management of Congress. That is to say that all agency employees, including agency leaders but excluding the regulation-makers previously mentioned, would be employees of Congress. Agency leaders would serve at the pleasure of Congress.

The president would be responsible for enforcing all properly enacted regulations and the Judicial Branch would be tasked with hearing all cases and controversies arising out of those regulations. That is to say that the regulatory agencies would no longer be able to enforce or adjudicate the enforcement of the regulations they issue.

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Brett Champion

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