Notice & Comment

Rays of Hope for the Administrative State, by Peter L. Strauss

The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the agency, so much more familiar with its statutes as a whole). This was the position clearly taken by the Court in 1940, in United States v. American Trucking Ass’ns. , and to go beyond it into decision, rather than review, of agency judgments would invite the substitution of judicial judgment for agency judgment—long and so appropriately verboten—and could invite floods of circuit conflicts onto the Court’s already crowded docket, as I noted in Chevron’s wake.

And the opinion of seven Justices in the very recent CFPB funding case—finding the arrangements Congress made for its funding within the permissible meaning for the Constitution’s Appropriations Clause—offers real hope, in my judgment, for limits as well on other assaults on “the administrative state.” The opinion for seven in that case upheld the arrangement on Justice Thomas’s unsurprisingly originalist reading of that clause. Given that intellectual limitation, it is an entirely persuasive—rigorous and highly intelligent—opinion. But what I want to note about the Court’s action is that five, perhaps even six, Justices could have voted for an opinion taking account of subsequent history—a “living Constitution” approach—that would have displaced Thomas’s opinion as the Court’s opinion, including two Justices (Kavanaugh and Barrett) commonly associated with the Court’s conservatives. I suspect that their care not to do that reflected respect for a colleague with whom they work from day to day, who could have been deeply insulted should the Chief Justice’s assignment of the opinion to him have been taken out of his hands. The Chief Justice is the only Justice who subscribed to Justice Thomas’s opinion without also expressing other views, and it is at least possible that he did so choosing not to insult/disappoint in this way the colleague to whom he had assigned the opinion. Not a word in Justice Thomas’s opinion addressed the concurrences and that in itself, perhaps, reflected appreciation for the collegiality that left the Court’s opinion in his hands.

If one can properly look past 1787, almost as soon as one does so one encounters “the administrative state,” as Jerry Mashaw so brilliantly showed us in Creating the Administrative Constitution. Put aside the immediately created bodies—the Post Office, Veteran’s Affairs offices, etc. —that could be so regarded. The congressionally created body to regulate the safety of steamboat boilers in the first half of the nineteenth century, and the Interstate Commerce Commission’s delegated authority to regulate railroad safety appliances in the second half, are indistinguishable in their origin from the National Highway Transportation Safety Administration, the Mining Health and Safety Administration, and the Occupational Safety and Health Administration of the 1970s—each created in response to unacceptable levels of social harm resulting from the activities to be regulated. While FDR is commonly painted as the villain responsible for creating “the administrative state,” let us note that the ICC and the FTC (each with its own building among the government offices lining Constitution Avenue) and other bodies long preceded FDR’s administration, creating models for the other agencies then established. And the agencies that appear to be the principal targets of today’s “administrative state” opponents—EPA, NHTSA, and OSHA among them—were products not of FDR’s time, but of a Republican President: Richard M. Nixon.

This is not to suggest that what is now called the major questions doctrine—judicial interpretations of agency authority that, right or wrong, fall squarely within proper judicial responsibility—will cease to be used by conservative Justices. But the engines of the administrative state, like the CFPB, can be expected to survive, and the judgments they reach within the authority that courts recognize they have will continue to be reviewed, not replaced.

Peter L Strauss is the Betts Professor of Law Emeritus at Columbia Law School.

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