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 3. To read part 2, click here. To read part 1, click here.
The administrative state, I am arguing, violates basic principles that ought to govern our political association. It
- allows law to be made case-by-case rather than settled in advance.
- allows, indeed encourages, laws whose content is anything but impartial and decisions on grounds that are anything but impartial.
- makes it impossible to know what the law requires and what it prohibits.
The administrative state allows law to be made case-by-case rather than settled in advance. Common law rests on respect for precedents. It seeks to achieve formal justice, treating similar cases similarly, by allowing outcomes of previous cases to serve as precedents for current and future cases. But administrative decisions set no precedents.
This is important to their functioning, in a sense, for prior administrations should not bind future administrations in their interpretations of law. (It is interesting, for example, that Chevron concerned the Reagan administration's loosening of the Carter administration's interpretation of the Clean Air Act.) But it also means that there is vast open space for agency discretion to violate principles of formal justice, judging similar cases differently, whether for noble, impartial motives or for reasons reflecting various forms of bias.
The Obama administration offered a host of examples: granting more than a thousand waivers to provisions of the Affordable Care Act to unions and other groups with ties to the Democratic Party while denying them for others; the IRS delaying decisions or declining to grant non-profit status to dozens of Tea Party organizations while granting such status to similar groups with different political orientations, and then destroying evidence demanded by Congress; the National Labor Relations Board's harassment of Boeing for locating a facility in South Carolina rather than Washington; the Fish and Wildlife Service's raid on Gibson Guitars for violating, supposedly, obscure laws of India and Madagascar; the Environmental Protection Agency's waiver of fees for Freedom of Information Act requests by left-wing groups while denying them for conservative groups; and the National Security Agency's surveillance of political opponents.
The administrative state allows, and indeed, promotes partiality. It allows, indeed encourages, laws whose content is anything but impartial, and allows decisions to be made on grounds that are anything but impartial. The decisions just mentioned could be chalked up to one administration's pattern of using the federal government as a political weapon. But there is also a disturbing tendency for agencies to rely on vague language, bring lawsuits, and use government power to pressure defendants into settlements by making the process so expensive and burdensome that defendants have little choice. Courts generally take a “rubber stamp” approach to agency subpoenas and document requests. Consider the California Air Resources Board and the Environmental Protection Agency teaming up against Hyundai and Kia alleging Clean Air Act violations and using the settlement to impose, through the back door, as it were, strict greenhouse gas emissions standards that could not have withstood the usual political process.
Even worse, non-profit organizations, state agencies, and federal agencies team up to produce outcomes that could not otherwise be achieved in the usual regulatory process. With the agency's encouragement, if not active cooperation, a non-profit or state agency sues the government, and the federal agency settles the case. This “sue and settle” technique allows partisan, often extremist groups not only to achieve their ends outside standard administrative law procedures but also to collect large settlements in the process, in effect using litigation as a way of channeling federal dollars to activist groups. The EPA has been especially fond of this tactic:
These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties. As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups. These cases resulted in settlement agreements and EPA publishing more than 100 new regulations---including the Clean Power Plan. (U.S. Chamber of Commerce, “Sue and Settle: Regulating Behind Closed Doors,” December 11, 2017.)
As that suggests, the results are often sweeping, imposing, for instance, reconsideration of the 2008 Ozone National Ambient Air Quality Standards and the Utility Maximum Achievable Control Technology Standards as well as the Clean Power Plan. Together, their economic costs total hundreds of billions of dollars per year. Defenders of such settlements argue that they are still subject to public comment and judicial review after the fact. But public comments tend to have little effect on outcomes, and courts defer to agency decisions, even more strongly in settlement cases than in others.
Consent of the governed? What's that?
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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