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Reforming the Administrative State Is a Game of Inches

The oral argument transcript in Armstrong v. Exceptional Child Center—subject of my preceding post —is here (link no longer available). Edwin S. Kneedler’s argument for the feds starts on page 16. ‘Tis a thing of beauty: it articulates the correct theory (mine J) almost verbatim, without any hedging or equivocation. This is remarkable for several reasons:

  • Kneedler is pitching his argument to the five conservative justices. (The liberal justices’ questions amply illustrate that they simply don’t want to get it.) He knew this in advance, and still did it.
  • The Solicitor General is pushing the argument against the wishes, or in any event without the support, of the Department of Health and Human Services. (My post explained those political pressures.)
  • The lads and lasses at the SG’s office are darn good—almost unbeatable—in cases that they’ve seen a million times (standing, some statutory clause, what-have-you): they just open the file cabinets and throw the stuff at you. They’re not so good at thinking through new and foundational questions; like any bureaucracy, they tend to paint by the numbers (whereas the private lawyers who gin up these cases get paid to think outside the box). Not so in this case: the Office thought its way through to a coherent theory, resisted internal and interest group pressures to mangle it, and l got it right when almost no one else did.

Why make such a fuss about it? As the late Senator Moynihan liked to say, when you see things that should not be happening, you ought to pay attention. But there’s a larger point:

Rethinking and reforming the administrative state and its law is a considerable intellectual effort—in many respects, a matter of first principles. Real-world efforts in that direction, in contrast, will often have to be situational. Here, a Department of Justice that in the general run hasn’t been all too scrupulous about lawful government ended up as just about the only institution (excepting some state legislatures) with any kind of incentive to ring the rents out of the system. The Chamber, in contrast, pushed its default position (keep the racket going).

How often can or will that happen? Probably, a lot. Corporate America—especially its Beltway contingents—is  just too invested in the system to be principled about it. E.g., we all yap about excessive delegation and want Congress to get back into the game. That’s the last thing any sentient CEO would want. Anything can happen in Congress (which isn’t true of the agencies); and when it does, you don’t get arbitrary and capricious review. Thanks but no thanks.

To repeat: the response can’t be, forget about the corporate hacks. Not much can be done without or against them; and on many issues, their default position will be right.  All I’m saying: would-be reformers will have to build coalitions in the sand, and those will sometimes look funky. Don’t look for a master plan: the AdLaw world is too chaotic. It’s a game of inches, and opportunities will arise, or disappear, unexpectedly.

Which is why the Armstrong miss is so dismaying. Let’s hope the justices get it right nonetheless, and let’s do better next time.

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