Having been a tad remiss in my blogging obligations, I’ll try to compensate by letting patient readers in on an elaborate political joke, involving the planet and the U.S. economy. Getting the joke demands familiarity with messy statutes and a keen appreciation of institutional incentives. That’s why we Washingtonians are rich and you people are a laugh a minute.
Finally! After a mere two years, the SEC has managed to propose a long-awaited rule to implement Section 953(b) of the Dodd-Frank Act. If you have the patience to wade through it, you’ll get a small but powerful illustration of the stupendous idiocy of the entire enterprise, and of the inability of our legal system to handle it.
In response to: Should the Courts Tame Our Administrative State?
I’m very thankful to the Liberty Law site for offering me this opportunity to discuss some fascinating and important issues surrounding our modern administrative state. And I appreciate both Professor Lawson’s and Professor Seidenfeld’s responses to my essay, as well as Professor Greve’s contributions to our debate. Administrative Law Orthodoxy: Perpetuating the Status Quo Professor Seidenfeld’s central proposition is that I am guilty of a heresy. I depart, he argues, from the “premises shared…by the general community of scholars who study the administrative state.” Specifically, his view is that my argument “rests on strictly libertarian assumptions.” My libertarian assumption, he alleges, is…
Joseph Postell’s timely call for reconsideration of the proper judicial role in overseeing the administrative state deserves serious attention. He is right that rule-of-law advocates (a term that I prefer to “conservatives”) often have so much suspicion of courts that they do not think carefully about the possibility that there is too little rather than…
When I agreed to respond to Professor Postell’s essay, I thought that we would be operating on premises shared, not only by him and me, but also by the general community of scholars who study the administrative state. Upon reading his essay, however, I realized that my understanding was incorrect. Postell’s essay rests on strictly…
Last week’s Liberty Forum exchange between Joe Postell, Gary Lawson, and Mark Seidenfeld on courts and the administrative state is an early, thought-provoking contribution to a large-ish debate that we should and, I hope, will have. It raises a basic question especially for those who (like Joe) argue for a more muscular, less deferential judicial role in the administrative state: what exactly do we want courts to do?
Joe Postell, Mark Seidenfeld writes, wants to mobilize courts for libertarian values—a smaller, more limited government. To the extent that this is in fact Joe’s position, Mark’s central objection is right: that can’t be the role of the courts, either as a normative matter (the size of government is, presumably, a political decision, within constitutional bounds) nor even as a conceptual matter. Joe celebrates F.A. Hayek’s embrace of the German Rechtsstaat and its independent administrative courts as a model. There is indeed much to like about that model (more in a sec). But it has nothing to do with small government. It has to do with lawful government—which can be very, very big. For proof, see Germany.
As it turns out, even the idea of lawful government is deeply ambiguous so far as the role of courts is concerned—far more ambiguous than Hayek, for one, lets on in his Rechtsstaat ruminations.
City of Arlington v. Federal Communications Commission, a big and hugely interesting AdLaw case, was decided last week. I still haven’t fully digested it. (I’ve been busy grading exams and assuring my disconsolate econ grad daughter, of whom I am immensely fond and proud, that there is life after Boston College.) Still: while a conservative-libertarian meme-in-the-making says that Arlington marks yet another triumph for a headless and heedless Fourth Branch, my preliminary noodling has led me to suspect that this may actually be wrong. There’s far more good news here than bad.
There is a strong argument that the Constitution’s original meaning employs a strict separation of powers approach. But many people argue that it would be too difficult to go back to this arrangement after the New Deal combined the powers in administrative agencies. Previously, I wrote about how the separation of judicial and executive power could be effected without incurring too much in terms of adjustment costs. See here and here.
Now, I want to move on to the separation of legislative and executive powers. During the New Deal, the Supreme Court greatly relaxed the nondelegation doctrine and this separation so that now there is no real judicial check on delegations. It is this change, more than any other, that has made the administrative state possible. So, it might seem that it cannot be reversed without undermining the administrative state.
But not so. Administrative law professors have for some time been aware of the following alternative arrangement. The agencies could formulate significant legislative rules as they do now. But instead of simply promulgating them, the agencies would send them over to the Congress. Then, congressional rules would employ a kind of fast track procedure that would require each house to vote up or down on the proposed rule with very limited debate. If passed, the rule would then be presented to the President. In this way, the agencies could propose the rules, but the Congress and the President would have to decide whether to enact them. There would be little delegation of legislative power to the agencies.
In a recent post, I discussed the fact that administrative agencies combine prosecutorial (executive) and judicial power, with the result that agencies are judges in their own cases. In this post, I want to propose a solution to the problem.
One way to avoid the combination of executive and judicial power is to have two different entities decide these matters. Interestingly, this actually exists in an agency — the National Labor Relations Board. The Board adjudicates cases under the National Labor Relations Act. The General Counsel of the agency, who is independent of the Board, makes the prosecutorial decisions. Thus, executive and judicial power are separated.
But there is another way of separating executive and judicial powers that would require a more significant change in agencies. One could employ Article III administrative courts instead of Administrative Law Judges (ALJs) to adjudicate. Article III administrative judges would have life tenure like other Article III judges. They would also not engage in any prosecutorial functions nor would they be supervised by officers who did.
Michael Greve’s earlier post on Administrative Law has inspired me to write a couple of posts about the subject.
One of the key issues in Administrative Law is that administrative agencies do not conform to the separation of powers. In a meaningful sense, agencies possess legislative, executive, and judicial power, which makes them a separation of powers monstrosity.
In this post, I will discuss an aspect of this problem: the combining of prosecutorial and adjudicative functions in the agency.
Prosecuting and adjudicating seems like an obvious violation not merely of the separation of powers but also of the rule of law. It has long been recognized that a man should not be a judge in his own case, and allowing administrative agencies to adjudicate their own prosecutions does exactly that. As a result, agencies may not faithfully follow the existing law, but instead bias the adjudication towards their own interests.
The Administrative Procedure Act, passed in 1946 to impose some constraints on agencies, established some checks on an agency’s power to adjudicate its own cases. In cases involving formal adjudication – those adjudications that are subject to the strongest procedural checks – the agency adjudicator (typically an administrative law judge or ALJ) cannot be supervised by an agency official who prosecutes. This is a significant check, and is all for the good.
I very much enjoyed Michael Greve's discussion of the Chenery case. As I am also a teacher of Administrative Law, having taught it for 20 years (and having the distinction of taking it over at USD from Administrative Law founder Ken Davis), I was pleased to learn some new details about that old chestnut, the Chenery case. Yes, as Michael mentions, the SEC behaved as a lawless bureaucracy -- but all for the public good, no doubt. And yes, as Michael mentions, the courts have constrained the SEC and other agencies a bit as to their lawlessness, including through administrative common…
Sort of—but not quite. In coming months I’ll devote a number of posts to the pathologies of our administrative law. To avoid further misunderstanding and to keep me gainfully employed, let’s take this from the top.