Fairness demands the protection of the administrative state

Most Americans do not fully comprehend the extent to which the modern regulatory and administrative state helps to secure social services that are important safety nets in times of crisis and further the promises of constitutional guarantees long denied in our country’s history. There is federal oversight or involvement in almost every area relevant to modern life, from protecting our health and the environment to regulating the stock market.  

Conservatives have pushed back against the reach of federal agencies, a rejection that is on full display in the current administration. President Trump has appointed individuals who do not seem to comprehend their agency’s mission, as with Mick Mulvaney, head of the Consumer Financial Bureau tasked with protecting American consumers from predatory practices by banks and other financial institutions. Mulvaney recently submitted a budget request of $0 for his agency. In contrast, his predecessor’s last budget request was for $217.1 million, a substantial increase over prior years.

{mosads}President Trump also has appointed agency heads who seem to reject their agency’s mission outright, as with Environmental Protection Agency head Scott Pruitt’s attacks on science and climate change.  

Equally alarming, a recent New York Times article has identified shrinking the administrative state as the new judicial litmus test for anyone nominated to a federal judgeship by the Trump administration. Thus, it is no surprise that Justice Neil Gorsuch, President Trump’s first appointment to the U.S. Supreme Court, has given every indication that he opposes what is commonly known as “Chevron” deference, so named after the 1984 Supreme Court case Chevron USA v. Natural Resources Defense Council, which requires that courts defer to agency interpretations of federal law.  

While on the Tenth Circuit Court of Appeals, then-Judge Gorsuch wrote a concurring opinion in a case called Gutierrez-Brizuela v. Lynch, where he criticized the Chevron doctrine for permitting “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”  

As professor Michael Dorf argued in a recent op-ed on Justice Gorsuch’s administrative law philosophy, this criticism of the Chevron case has not been widely adopted because it depends on two problematic assumptions about the separation of powers. The first assumption is that Congress cannot delegate its legislative authority to administrative agencies, but the court has not enforced this rule in over 80 years. Second, Justice Gorsuch assumes that Chevron deference usurps the role of the courts to “say what the law is.” Instead, the doctrine recognizes that agencies interpret statutory mandates that are ambiguous, and courts should defer to those interpretations provided that they are reasonable.         

According to Mark Holden, the general counsel of Koch Industries, appointing judges who actively confront and challenge the administrative state is necessary because our vast administrative apparatus is not only inconsistent with the original understanding of the Constitution, but fundamentally unfair.

The idea that fairness demands the appointment of judges who reject the administrative state that is so central to the lives of Americans completely misconstrues the role of judges in our legal system. Rather than adopting a narrow-minded conception of the Founders’ Constitution, impervious to the demands and complications of a modern society, judges should defer to agencies because they have the expertise and knowledge to best implement the thousands of rules necessary to implement their statutory mandates.  

Fundamental fairness does not require, to borrow Democratic Sen. Richard Blumenthal’s language, the “weaponization” of our judiciary to attack the structures that have helped to secure the wellbeing of Americans for generations. Instead, it requires the appointment of fair-minded constitutionalists who recognize that an attack on the administrative state illustrates clear disdain for how government affects and improves the lives of regular Americans every day.      

Franita Tolson, a professor at University of Southern California Gould School of Law and senior fellow for the People For the American Way, teaches election law and constitutional law. Her book, “A Promise Unfulfilled: Section 2 of the Fourteenth Amendment and the Future of the Right to Vote,” will be published in 2019 by Cambridge University Press. Follow her on Twitter @ProfTolson.