Saturday, June 29, 2024

EDITORIAL: The Administrative State Is Put Back in Its Constitutional Place


Scarcely anything was more central to the people who framed our Constitution than the separation of powers. John Adams, in the Massachusetts Constitution of 1780, wrote that it was designed “to the end it may be a government of laws, and not of men.” It was a topic upon which the men who gathered at Philadelphia in 1787 were effectively unanimous, having already incorporated it in the constitutions of their several states. Even more so than federalism, individual rights, or enumerated and limited powers, it was the separation of lawmaking, law-enforcing, and law-interpreting powers that they saw as the safeguard against the erosion of all the other elements of the constitutional system. And at the tip of the spear of the law, they placed the jury system, giving a share of the judicial power to ordinary citizens.

This system has always had its critics. The framers of the Confederate constitution of 1861 watered it down in their own version. Woodrow Wilson and other Prussian-inspired intellectuals thought it was old-fashioned, inefficient, and an obstacle to rule by modern experts. Wilson’s heirs to this day defend the bureaucratic administrative state, which interprets its own laws, runs its own courts, and is insulated from removal by the executive. 

Americans in many walks of life have found themselves ensnared in these institutions, which are frequently immune to elections and unconstrained by written law. That includes the fishermen in Loper Bright Enterprises v. Raimondo, who found themselves saddled with the cost of regulatory monitors traveling on their fishing boats — even though Congress never passed a law making them pay that cost.

The Supreme Court has struck a series of powerful blows against this system. In SEC v. Jarkesy, it ruled that the Seventh Amendment right to a jury trial in civil cases cannot be evaded in cases brought by a government agency simply by the expedient of assigning them to an administrative law judge employed by the same agency. In Loper Bright Enterprises v. Raimondoit struck down the Chevron doctrine, which allowed agencies not only to interpret ambiguities in their own statutes but to demand that courts defer to those interpretations.

...The Court also brushed back an overweening Environmental Protection Agency rule, in Ohio v. EPA, that ran roughshod over a congressional design to share responsibility for air quality between the EPA and the states. And it has one further case left, Corner Post v. Board of Governors of the Federal Reserve System, that could give regulated parties more time to bring challenges to unlawful rules.


1 comment:

Samuel said...

I like the article but I differ with you greatly on one very, very important point.

There is no Constitutional place for the “Administrative State”.

The Constitution is firm “All legislative Powers herein granted shall be vested in a Congress of the United States.” Nowhere in the Constitution for these United States is there any implied or expressed authority to delegate the legislative power. That means not “regulations”, only laws passed by the Congress in accordance with the guidance outlined in the Constitution.

Our Constitution is one of enumerated powers. If it is not there, you cannot do it. Your favorite largess dispensing Bureaucracy is easily manipulated, they are not accountable. Legislators are accountable and need to be held so, especially when the citizenry realizes they are passing out money and favors. For this reason all of their rules need to either become law, passed by legislator who may be denied re-election or lynched, or go away.