For those who study or practice administrative law, 2021 is a good opportunity to look back and take stock. The year brought three significant anniversaries in administrative law: the seventy-fifth anniversary of Congress’s unanimous enactment of the Administrative Procedure Act, the fortieth anniversary of President Reagan’s landmark executive order on White House regulatory oversight, and the twentieth anniversary of Elena Kagan’s “Presidential Administration.” The APA’s anniversary already has spurred a wave of thoughtful commentary—some of it appearing in the George Mason Law Review’s recent symposium issue, and the latest being Robert Gasaway’s essay here.
This year also casts the administrative state’s character in the starkest possible light. Every new presidency’s first year brings whiplash-inducing change in federal law and policy—less a transition than a regime change, first with waves of executive orders, and then with rulemakings and other regulatory actions to carry the new administration’s agenda into effect.
It is, in other words, the most energetic year of every presidency. Indeed, Alexander Hamilton’s argument for “energy in the executive,” if counterintuitive in his day, is practically cliché in ours.
But read Hamilton a little further. His energetic executive was good not for its own sake, but rather for specific ends: national security, of course, but also “the steady administration of the laws.”
This is no small thing, as he emphasizes just two papers earlier. “The true test of government,” he writes, “is its aptitude and tendency to produce a good administration.” Not just a true test, but the true test. (And worth mentioning not just once in the Federalist, but twice.) Given all that Hamilton covers in his Federalist essays, including his famous argument for the judicial power, his focus on “good administration,” and “steady administration,” is remarkable.
So are we passing his test? Mr. Gasaway offers reasons to doubt it.
He counts “executive unilateralism” and “regulated parties’ fears of retaliation” among “the most severe maladies” of today’s administrative state.
These surely are significant threats to republican government, but they are symptoms of a much more fundamental problem: a century’s accumulation of legislation delegating immense power and discretion to the president and to agencies, making administration much more powerful, but much less steady.
This seems a modern problem, but it is timeless. James Madison highlighted the delegation problem in his 1787 memorandum on “Vices of the Political Systems of the United States.” Writing of the dangerous “multiplicity” of laws being enacted in the states, Madison saw that republican government must take care “to mark with precision the duties of those who are to obey them, and to take from those who are to administer them a discretion, which might be abused.” And, he added, “as far as the laws exceed this limit, they are a nusance [sic]: a nusance of the most pestilent kind.”
By 1946, as federal statutes delegated ever more power and discretion to agencies, Congress saw that it had created a problem. One solution, the Madisonian one, would have been to scale back the delegations, one-by-one or en masse. But Congress chose another path: it left the delegations of power intact, and promoted processes—administrative and judicial—for overseeing the administration of those powers.
The APA regulated the administrative state but also legitimized it. By normalizing governance-by-delegation, Congress made a deliberate, generational choice; indeed, just months later Congress enacted the Legislative Reorganization Act, by which the legislative branch reshaped itself to improve its oversight functions (as Professor Joseph Postell highlights in the George Mason Law Review symposium).
And through the APA, Congress reframed executive power, too. Before 1946, there remained at least some difference between the “executive agencies” and the “independent regulatory commissions.” The latter wielded “quasi-legislative” or “quasi-judicial” powers, seemingly distinct from the executive powers administered by “executive agencies” (and thus worthy of a certain measure of independence from presidential control). But the APA reduced the vast bulk of all administrative actions, executive and independent agencies alike, into two categories: the quasi-legislative work of agency rulemaking, and the quasi-judicial work of agency adjudication.
That is, the APA helps to make administrative action either more legislative, or more judicial, but either way less executive. The APA’s procedures promote many values, but it is hard to see Hamilton’s ideal qualities of execution—“decision, activity, secrecy, and despatch”—among them.
The modern era of government-by-delegation wrought other changes in Congress, too. Each time Congress empowered agencies to make new laws and policies unilaterally, it channeled future political energy into those agencies, reducing all of the hydraulic forces that are needed to force Congress itself to do the harder work of deliberating and compromising on new legislation. Many future presidents would announce that “if Congress won’t act, I will,” but the reverse also seems true: because presidents can act, congressmen won’t. Instead, each new delegation of power to agencies creates greater incentives for oversight activities, not legislation, as the vehicle for congressmen’s ambitions.
Indeed, when we step back to survey the entire scene, we see distortions across the board. Under the Constitution’s original design, Congress would write the laws with an eye to the future; the president would administer those laws, executing them with prudence in the here-and-now; and the courts would decide cases, looking backward to laws already written and facts already occurred.
But now, in an era of broad delegations, each branch has moved over one seat. The president issues executive orders—especially the regime-change orders that mark the start of each new presidency—and his agencies promulgate new regulations, all with an eye to the future. Then federal courts are swiftly summoned to block the orders and rules with decisions heavily laden with prudential or discretionary judgments in the here-and-now. And congressmen, looking back at what’s happened, render their judgments in oversight hearings, or on cable television.
There are many words to describe this situation, but Hamilton’s “steady administration” is not among them.
An earlier generation of judicial conservatives, led by Justice Scalia and the Reagan Administration, accepted overbroad delegations as an unfortunate fact of life: Congress was unlikely to repeal them, and courts were ill-suited to negate them. The solution, many concluded, was for presidents themselves to reform agencies whenever possible, and for courts to leave maximum space for presidents to do so, in doctrines like Chevron deference.
But Chevron deference eventually created more problems of its own, and recently judges and scholars focused their attention on the root problem, delegation. Yet Justice Scalia’s original worry, that judicially imposed nondelegation doctrines would simply be a conservative version of the standardless judicial decision-making that originalism was intended to prevent, still rings true.
Perhaps the best way to achieve Hamilton’s “steady administration” in Madison’s republican government is not for courts to strike down more laws, but for courts to give less and less deference to agencies’ interpretations of ambiguous statutes over time, as the statutes’ meaning becomes liquidated through the experience of actual administration of the law; eventually the courts must fix the ambiguous statute’s meaning, and commit any further policy changes to Congress itself. Perhaps some of the Roberts Court’s recent decisions, putting more weight on longstanding agency interpretations, indicate that the Court’s majority is gravitating toward modern versions of “steady administration.”
As it happens, while Mr. Gasaway and I agree on many problems in the administrative state, the definition of “administration” is a point on which he and I fundamentally disagree. I struggle to see how “what we call ‘core’ administration” involves only “government conferring benefits on private parties.” From the very start, “administration” has entailed the “steady administration of the laws”—indeed, the faithful execution of regulatory laws—such as the first Congress’s laws for the regulation of coastal trade, which were administered by the Treasury Department. (And this execution, both Hamilton and Madison recognized, necessarily entailed at least some measure of discretion. Eliminating all vagueness from laws, and all discretion from enforcement, is impossible; the challenge is to minimize it, knowing that some residual discretion will always remain, for better and for worse.)
Hamilton’s own definition of “administration” swept even more broadly, covering all aspects of the president’s execution of domestic and foreign policy. But even if one casts a smaller definitional net, it is hard to construe the American experience of “administration” in terms that exclude the enforcement of laws, or that exclude significant degrees of administrative discretion.
And that discretion, in turn, brings me to one last part of Mr. Gasaway’s essay. Quoting his mentor, Judge James Buckley, he urges that “the ultimate challenge we face today” is the need to restore “America’s traditional constitutional morality.” I could not agree more, and I would add that one of the things to be restored is the connection between constitutional administration and republican virtue.
While our Founders intended for “ambition . . . to counteract ambition,” they also recognized that our constitutional system depends on self-restraint, and especially executive self-restraint: from each president’s faithful execution of laws that he himself would not have signed into law; to his oath-sworn duty to faithfully execute his office in general; to his administration’s execution of Supreme Court judgments with which he disagrees; to what Gregory Weiner rightly described as the president’s “prudent deference” to many of the judgments of the officials who work for him yet who must not be, as Hamilton put it, simply “the obsequious instruments of his pleasure.”
In all of these aspects of administration, we depend on constitutional morality, on republican virtue, for self-restraint. The work of restoring the administrative state to its constitutional foundations will require not just new statutes, and new judicial decisions, but also a renewed commitment to the requisite qualities of statesmanship and responsibility among the administrators themselves, starting with our presidents.