Preventing Minority Rule by the Administrative State

Jon Huntsman and Joseph Lieberman have written an interesting piece arguing against rule by narrow majorities. They believe rule by the 51 percent leads to polarization, instability, and oppression of minorities. I generally agree, and Mike Rappaport and I have devoted a substantial portion of our careers arguing that supermajority rule requiring consensus for government action, particularly at the federal level, is often better than narrow majority rule.

But even worse than enactment of coercive regulation by a bare majority is that by a minority. And the modern American administrative state encourages minority rule. The basic reason is that the President is likely to represent more the median voter of his party rather than the median voter of the nation. His nomination was secured by satisfying these voters. To be sure, his election and reelection depends on assembling a broader coalition but citizens appear to vote at the national election more on the state of the economy and a few very high visibility policies than a President’s overall administrative record.

As a result, an administration’s regulatory agenda will often represent the preferences of only a minority of the nation. Sadly, administrative law gives the President and his appointees substantial discretion to follow such preferences. Broad delegations allow for the choice of a wide range of policy points, including those on the more extreme ends of the spectrum. And Chevron even allows for loose interpretation of these delegations. Even previous regulations by administrations of opposing parties often prove no obstacle to pursuit of a strongly partisan agenda,  because Auer deference allows an administration to interpret them loosely as well. Democratic administrations may benefit a bit more from these tools, because they are less likely to be checked by a bureaucracy that is more broadly sympathetic to their goals.

Thus, those who disfavor minority coercion have yet another reason to support the taming of the administration state. The Republican Congress can begin this process by enacting the REINS Act.  That act would require regulations that cost a substantial amount of money to be enacted by Congress under streamlined voting procedures, thus empowering centrist voters who are better represented in Congress, particularly in the Senate.  Congress should also enact framework legislation that would reduce Chevron deference and eliminate Auer deference, thus constraining executive discretion. Finally, Congress could also require multimember agencies to enact new rules that burden citizens by supermajority vote, thus requiring buy-in by commissioners of the party opposing the President.