Philip Hamburger is a law professor and constitutional scholar at Columbia Law School. About the administrative state, he has said:
“The administrative state is the antithesis of constitutional government. It is not simply an administrative system, but an alternative to the Constitution.”
“The administrative state is not constitutional, but unconstitutional. It violates the Constitution’s separation of powers, as well as its guarantees of individual rights. It also violates the Constitution’s republican principles, by allowing officials to exercise lawmaking power that should be exercised only by elected representatives.”
But “how did we get here?”
Let’s start with the “Chevron Doctrine,” named after the Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), which is the cornerstone of administrative law since. Under Chevron, courts are required to defer to an agency’s reasonable interpretation of a statute that it administers. The Chevron doctrine should be overturned
Criticism of the Supreme Court’s Decision in Chevron
The Supreme Court’s decision in Chevron has been widely criticized by legal scholars and practitioners. One of the most significant criticisms is that the Court’s decision fundamentally misunderstands the role of the judiciary in interpreting statutes. As Justice Scalia noted in his dissenting opinion, “it is the role of the judiciary to say what the law is, not what it should be.”
The Chevron doctrine has also been criticized for creating an imbalance of power between the executive and judicial branches. As Professor Adrian Vermeule has noted, Chevron deference “increases the relative power of agencies and their political overseers, at the expense of courts and their political overseers.”
Scandal
The power of administrative agencies has only continued to grow since the Chevron decision was handed down. Some of the most powerful agencies include the Environmental Protection Agency (EPA), the Department of Health and Human Services (HHS), and the Internal Revenue Service (IRS).
These agencies have been subject to numerous scandals in recent years. For example, the EPA was involved in the Flint water crisis, which led to widespread lead poisoning in the city’s drinking water. The HHS has been criticized for its handling of the Affordable Care Act, including the disastrous rollout of the healthcare.gov website. And the IRS was embroiled in a scandal involving the targeting of conservative groups for heightened scrutiny in the run-up to the 2012 election.
Constitutional Criticism
It is easy to conclude that the doctrine is inconsistent with the separation of powers and the rule of law. The doctrine effectively allows agencies to interpret statutes with little to no oversight from the judiciary, creating a situation where agencies effectively make the law.
The Chevron doctrine also leads to arbitrary and capricious decision-making by agencies. Because agencies know that their interpretations of statutes will be given deference by courts, they are more likely to adopt interpretations that are driven by political considerations rather than by the text of the statute itself.
Other Legal Arguments Against the Chevron Doctrine
The Chevron doctrine violates the separation of powers doctrine in the Constitution. (United States Constitution, Article I, Section 1; United States Constitution, Article II, Section 1; United States Constitution, Article III)
Chevron gives too much deference to administrative agencies, which can result in agencies interpreting laws in ways that go beyond their delegated authority. (United States v. Mead Corp., 533 U.S. 218 (2001))
Chevron creates a “bias in favor of agencies,” which undermines the rule of law. (Michigan v. EPA, 135 S.Ct. 2699 (2015))
Chevron’s two-step framework is overly simplistic and does not adequately take into account the complexity of legal issues. (Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012))
The Chevron doctrine has over-empowered non-elected bureaucrats, creating an imbalance of power between the executive and judicial branches, undermining the principles of the rule of law and judicial review, and incentivizing agencies to engage in arbitrary and capricious (i.e., political) decision-making.
