The following are remarks prepared for a panel, “Donald Trump and the Future of Democracy,” at the Eastern meetings of the American Philosophical Association, January 2018 — Part 2. To read part 1, click here.
The administrative state, I shall argue, violates basic principles that ought to govern our political association. It:
- allows law to be made without the consent of the people or their representatives.
- makes agencies judges in their own cases.
- violates separation of powers.
The administrative state allows law to be made without the consent of the people or their representatives. Fundamental to the administrative state are processes of formal and informal rulemaking. Administrative agencies such as Health and Human Services, the Environmental Protection Agency, the Department of Education, the Securities and Exchange Commission, the Federal Trade Commission, and hundreds of others make rules which “implement, interpret, or prescribe law or policy” under the specifications of section 551 of the Administrative Procedure Act of 1946.
There are significant procedural requirements “akin to a trial” on formal rulemaking, including cross-examination, which explains why agencies generally avoid the process unless the relevant statute requires it. Informal rulemaking, under section 553, is much simpler, submitting a proposed rule to public comment and then publishing a final rule together with a statement of basis and purpose together with replies to comments. Agencies implement rules by publishing guidelines and interpretations of rules, issuing policy statements, and compelling compliance and enforcement activities.
Rules developed through either formal or informal procedures must appear in the Federal Register. They take effect in sixty days if Congress doesn't enact a resolution of disapproval. This is not an effective check on administrative power; since 1996, Congress has done this exactly once.
Agencies furthermore often issue interim final rules, which become effective immediately. They also issue direct final rules on matters they judge to be routine. The procedural requirements on rulemaking frustrate the agencies, who find that it takes years to finalize many rules. They nevertheless succeed in finalizing them: Federal agencies issue more than three thousand new rules each year.
Agency guidelines, interpretations, “No Action,” and “Dear Colleague” letters have no procedural requirements at all, but often have much the same practical effect as a published rule. Increasingly, our lives are governed not by rules passed by our elected representatives but developed by officials in federal and state bureaucracies who are unknown, unelected, and unaccountable.
The administrative state makes agencies judges in their own cases. Cases brought by an agency under administrative law are generally heard in administrative courts. There are currently 257 administrative law judges in the United States who hear such cases. The administrative state thus acts as judge in its own cases. Judicial review of administrative law courts, moreover, is limited. In Chevron v. National Resources Defense Council (1984), the Supreme Court adumbrated a doctrine of administrative deference; courts must accept an agency's interpretation of a statute so long as it “is based on a permissible construction of the statute” and Congress has not spoken directly to the question. Administrative decisions of various kinds get great deference and respect under cases such as Chevron, U.S. v. Mead (2001), and Auer v. Robbins (1997), which gives agencies' interpretations of their own rules the highest possible deference. Here is a summary from a recent decision by the Fifth Circuit Court of Appeals, Markle Interests et al. v. U.S. Fish and Wildlife Service (2016):
When reviewing agency action under the APA, this court must “set aside agency action, findings, and conclusions found to be--(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations.”
Review under the arbitrary-and-capricious standard is “extremely limited and highly deferential,” and “there is a presumption that the agency's decision is valid”. The plaintiff has the burden of overcoming the presumption of validity. We must be mindful not to substitute our judgment for the agency's. “We will uphold an agency's action if its reasons and policy choices satisfy minimum standards of rationality.”
The law has tilted far enough that some have even asked whether administrative agencies have the right to overrule courts!
The administrative state violates separation of powers. Agencies, we have seen, make rules. They enforce those regulations. They adjudicate cases brought under those regulations in administrative courts in proceedings before administrative law judges. In short, agencies fulfill legislative, executive, and judicial functions. They act as legislator, police officer, prosecutor, and judge. Legislative and judicial checks on their power are ineffective. It is hard to imagine a clearer violation of separation of powers or a more direct authoritarian threat.
Daniel Bonevac is Professor of Philosophy at the University of Texas at Austin. Author of five books, most recently, "Ideas of the Twentieth Century," and editor or co-editor of four others, he has published over 60 articles in professional journals. He has also written for The Washington Post, The Critique, and The American Spectator. His massively open online course, "Ideas of the Twentieth Century," has enrolled over 50,000 students. He is co-founder of BriefLogic, a marketing communication firm. He is also a contemporary Christian musician and songwriter; you can hear his music on his daughter’s debut album, "Transfiguration." To read more of his reports — Click Here Now.
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