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.