Feature Week is a new initiative from The Texas Orator to publish articles from prominent, thoughtful professors on campus at the beginning of each semester as an introduction to our semester of work. Our first installment in our Feature Week collection is an article graciously written for us by Dan Bonevac. Dr. Bonevac is a philosophy professor at UT Austin and co-founder of BriefLogic. His research focuses on where metaphysics, logic, and ethics collide.
We live, in theory, in a republic — a nation in which representatives of the people make the laws we live under, within the constraints established by the Constitution. Increasingly, however, we live under rules crafted by unelected bureaucrats who represent neither us nor our interests. To paraphrase Rousseau, we are born free, subject only to the laws our own representatives have imposed. But everywhere we are in chains, subject to rules never put to a vote — rules that govern almost every aspect of our lives. Government of, by, and for the people has yielded to government of, by, and for the bureaucracy.
The administrative state, the collection of federal agencies whose headquarters stretch for mile after mile in Washington, DC, comprises hundreds of federal agencies and departments. Technically, they are part of the executive branch; as we see day after day, however, they operate largely out of control of the president, the executive branch’s nominal leader. In practice, they constitute a fourth branch of government, one not authorized by the Constitution, and subject neither to the approval of the voters nor to any significant checks and balances. Their effect is enormous; John W. Dawson and John J. Seater have estimated that the economy would be three-and-a-half times larger if regulation had remained at New Deal levels (“Federal Regulation and Aggregate Economic Growth,” Journal of Economic Growth (2013), 137–177).
In short, the administrative state is out of control.
Progressives such as Theodore Roosevelt, Woodrow Wilson, and Franklin Delano Roosevelt created the administrative state without any Constitutional or legislative authorization. That would have been entirely within their prerogative, as leaders of the executive branch, if the agencies they created served solely in an investigative, advisory role. But they don’t. They make rules. In fact, they regulate almost every facet of American life, enacting about three thousand rules each year. Consider a few examples:
- The Environmental Protection Agency decides which substances to count as pollutants, what appropriate levels of those substances are, and what technologies are required to achieve environmental goals. Under the Obama administration it imposed the Clean Power Plan, effectively eliminating coal as an energy source, and declared carbon dioxide a pollutant. The Obama Department of Transportation also required vast increases in automobile fuel efficiency. No one ever voted on any of those policies.
- The Department of Energy mandates usage levels on everything from dishwashers and washing machines to toilets and shower heads. Do you ever wonder why it takes hours to wash dishes or do the laundry when, ten or twenty years ago, it took a fraction of that time? Thank the Department of Energy. Again, no one ever voted on any of these mandates.
- The Obama Department of Education “reinterpreted” Title IX of the Civil Rights Act, changing it from something requiring equal funding for men’s and women’s sports programs to something requiring vast campus bureaucracies to monitor student speech and behavior. No one voted on that reinterpretation.
You may like these regulations; you may dislike them. You may worry that they force national policies on matters better left to the states or to individual judgment. You may consider them a distraction from more pressing issues. Whatever your attitude, however, you should be appalled that they were imposed without any legislative discussion or debate by people utterly unaccountable to the voters.
For about thirty years, the administrative state operated without any legal authority at all. In 1946, Congress passed the Administrative Procedure Act, which finally provided that authority. It did little, however, to subject federal departments and agencies to legislative or judicial oversight. Astoundingly, the entire structure of agencies in Washington — no one is sure how many there are, but counts range between 200 and 500 — rests on an Act only nine pages long.
The Act allows agencies to “implement, interpret, or prescribe law or policy” through formal and informal procedures. Formal rule-making proceeds on the analogy of a trial, allowing cross-examination, for example. But informal rule-making, the more common kind, is simple, requiring public comment and agency response but otherwise imposing few restrictions.
Agencies often bypass even the lax requirements governing informal rule-making. They issue interim final rules, direct final rules, guidelines, interpretations, “No Action” letters, and “Dear Colleague” letters, with no procedural requirements at all.
There is no effective check on agency power. Regulations appear in the Federal Register and take effect in sixty days unless Congress passes a resolution of disapproval — something that has happened only once in the past two decades. It’s hard to blame Congress; in 2016, the Federal Register had 97,110 pages — 265 a day! Agencies issued two major rules, with over $100 million in impact, every week. If Congress were to engage in more careful oversight, it could do nothing else.
Judicial review is also ineffective. The agencies are judges in their own cases—the administrative law judges who hear cases before them are their own employees—and the Supreme Court pronounced a doctrine of administrative deference in cases such as Chevron v. National Resources Defense Council (1984).
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.” (Markle Interests et al. v. U.S. Fish and Wildlife Service (2016))
We need a new Administrative Procedure Act with provisions deigned to allow for more effective legislative and judicial checks on the power of the administrative state. Here are some key provisions I recommend:
- Procedural Protections: Guidance documents, interpretations, “Dear Colleague” letters, and other rules outside legally specified formal and informal processes are not to be legally enforceable.
- Mens Rea: Agencies are to impose civil or criminal penalties only after proving that an agent acted knowingly in violation of the law.
- Separation of Powers: Administrative law judges are to be housed in an independent agency, whose head is to be appointed by the executive and confirmed by the Senate.
- Legislative Review: A joint legislative committee is to review all rules before they can take effect, A negative committee vote kills a proposed rule.
- Judicial Review: Courts are no longer to show administrative agencies deference.
- Lenity: All statutory or regulatory ambiguity is to be resolved in favor of the defense.
Whatever form a new Administrative Procedure Act might take, we need one — urgently. As things stand now, agencies make rules and enforce them. They adjudicate cases brought under them. They act as legislator, police officer, prosecutor, and judge. There is no effective check on their power. As James Madison wrote in Federalist 47:
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.
Categories: Domestic Affairs