At Liberty Law Forum, Ilan Wurman: A Modest Proposal for Reforming the Administrative State. From the core of the argument:
Constitutional conservatives [in addressing the administrative state] have offered only variations on one theme: restore a proper non-delegation doctrine, thereby reserving to the Congress the legislative power and ensuring that the administration exercises only executive, and not also legislative (or judicial), power. What this solution amounts to is a call to do away with the entire administrative state. As much as we may wish for this to happen in a first-best world, we live in no such world. Politics should always be, and can only be, aimed at the best practical regime.
Let us propose something different. To accept the reality of the administrative state, we must accept the reality of legislative delegation. Does it follow that we must also accept the serious blow modern administration deals to the separation of powers? I do not believe it does. Indeed, by accepting delegation, I contend that we not only will recover a large measure of separation of powers, but we can also mitigate the harms to republicanism from delegation itself.
Let us imagine what would happen were we to accept as a matter of doctrine what is already true as a matter of reality. Let us accept that Congress delegates power to agencies. What follows from that acceptance? By accepting delegation, we can recognize that the administration exercises not only executive, but also legislative and judicial, power. That recognition then allows us to reframe the separation of powers question from who exercises power in the first instance—the constitutional branches of government, or the agencies?—to who controls the exercise of that power by the agencies.
And in conclusion:
I confess that, when reading modern administrative law cases, I often feel torn. On the one hand, the formalism of modern doctrine tends to ensure rule-of-law values and certainty, and is more faithful to the constitutional text on the surface than is functionalism. On the other hand, there can be no doubt that had the Framers conceived of the modern administrative state, they would be aghast at the power of the executive branch. Thus, even those who have recognized that certain functionalist tools might be unconstitutional as originally understood argue that such tools ought to be permitted to balance the accretion of power in the executive. There is something incredibly compelling about Justice Byron White’s functionalist vision for administrative law in his Chadha dissent. It is not quite what the constitutional text says, but it looks a lot more like what the text may have been intended to create than the majority’s formalist vision.
Constitutional administration advances this debate between formalists and functionalists in the context of separation of powers and the administrative state. Formalism only requires an accretion of tremendous power in the executive branch if we accept the fiction that Congress does not delegate legislative power and thus that its agents in the executive are always exercising executive power. Once we recognize and permit delegation, we can apply formalist reasoning to achieve what were originally functionalist results in many separation-of-powers cases. A formalist, for example, would permit a legislative veto of agency rulemaking, thereby reserving significantly more power to Congress than it currently enjoys.
If modern doctrine reflected these insights, many constitutional conservatives would breathe more easily when contemplating the administrative state. Functionalists who seek more accommodation between Congress and the President than current doctrine allows also ought to breathe more easily. The administrative state, if it looks unconstitutional at all, would suddenly look a lot less unconstitutional. The activities and powers of each branch of government would be closer to their intended original operation. Congress would have more power over legislative matters, the President over executive matters, and the courts over judicial matters.
Progress can be made. We need only accept a de facto precedent—the actual delegation of legislative power to agencies—that we have refused to acknowledge for several decades. We need only reorient our thinking on delegation.
Christopher Walker (Ohio State) comments: (Incrementally) Toward a More Libertarian Bureaucracy. From the introduction:
In contrast to Justice Thomas’s call to reinvigorate the nondelegation doctrine, Wurman proposes that “we must accept the reality of legislative delegation” and then rework a number of other administrative law doctrines, such as reviving the legislative veto and shifting to plenary review of certain agency adjudications. Wurman’s proposal is reminiscent of Kathryn Watts’ recent proposal that we accept Rulemaking as Legislating—though her approach to abandoning nondelegation arguably leads to an administrative state that Wurman would not embrace. (I previously expressed skepticism about the Watts proposal here—much of which I’d apply to Wurman’s as well.)
The Watts and Wurman approaches are bold and sweeping, and neither is likely to be embraced by the Supreme Court or by Congress. My response to Wurman thus focuses on a number of incremental and, I believe, more realistic reforms that would move us toward a more libertarian administrative state. They are by no means exhaustive; what they do is illustrate the types of liberty-enhancing measures we could plausibly pursue via legislative, judicial, or even executive action.
Posted at 6:48 AM