E. Donald Elliott (Antonin Scalia Law School; Yale Law School) has posted The On-Going Judicial Reconsideration of the Administrative State in the U.S. (Constitutional Discourse, July 20, 2023) (12 pages) on SSRN. Here is the abstract:
This paper describes the on-going reconsideration of the Administrative State by courts in the U.S. It describes why the re-evaluation is occurring now and reviews the grounds being considered in pending cases, including the delegation doctrine, the unitary executive theory, the Chevron doctrine. It proposes a "spirit of the Constitution" approach based on McCullough v. Maryland.
And from the article (footnotes omitted):
The “spirit of the Constitution” test would require courts to consider more broadly whether the structure and functions of new institutions such as administrative agencies are consistent with the overall design features of the Constitution. For example, one of the most thoughtful drafters of the Constitution, James Madison, opined that a key feature of our Constitution is the separation of powers into three branches: ““The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”
However, today many administrative agencies exercise all three kinds of power,
legislative, executive and judicial. No specific text in the Constitution prohibits this design, although it is inconsistent with the overall design of the Constitution itself which divides power to protect liberty. Many of the architects of the administrative state such as Woodrow Wilson and James Landis thought that separation of powers was an inefficient relic and proudly proclaimed that administrative agencies should exercise all three kinds of powers.
It remains to be seen whether the on-going reconsideration of the structure of the
administrative state will go so far as to require that administrative powers must be consistent with the overall design features immanent in the Constitution, what Chief Justice Marshall called “the spirit of the Constitution,” or merely its specific provisions.
My view is that the specific provisions should be enforced and no spirit is required, but a number of features of the administrative state are suspect under the specific provisions. The article posits that "many administrative agencies exercise all three kinds of power, legislative, executive and judicial [and] [n]o specific text in the Constitution prohibits this design." I disagree. If we take seriously the propositions from the vesting clauses that the legislative powers therein granted are vested in Congress, that the executive power is vested in the President, and that the judicial power is vested in life-tenured federal courts, I think the administrative state would be adequately contained.
Posted at 6:10 AM