Courts Reform the Administrative State Without Congress

Contact Your Elected Officials

Congress talks and talks and huffs and puffs about over-regulation and reform of the Administrative State but never takes on the challenge. The courts however, are again stepping into a legislative role to place limits on agency lawmaking, as Congress continues down the path of irrelevancy.

For decades there have been concerns about the federal government’s growing power, size, and cost. Nothing, however, has been done to address it. It just expands. Why? Is it an uncontrollable deep state, an unmanageable bureaucracy, or just too complex? While a solution is always available, the federal government benefits significantly from the Administrative State. It opposes change.

The term Administrative State describes the power of Executive branch agencies to create, adjudicate and enforce their own rules. Congress enacted the Administrative Procedure Act in 1946 (APA) to exert control over the administrative State by establishing procedures for federal agencies to make and enforce regulations. Unfortunately, over time the agencies, with the help of the courts, found ways around APA restraints.

Unfortunately, Congress has been unable to substantively amend the APA in the 76 years since its enactment, notwithstanding that the federal courts have expanded agency power by granting deference to their interpretations of the law. Judicial deference is a critical component of the Executiveโ€™s regulatory power. Applying it diminishes the lawmaking power of Congress by tipping the scales in favor of Executive branch interpretations.

Today, the administrative State is a massive collection of unelected federal officials, except the president, that has issued 212,271 rules since 1976. Its regulatory tenacles control almost every aspect of society, from the food we eat to the health information given to us. Regulatory costs are estimated at $1.9 trillion in 2021.

Can the administrative State be reformed?

The 115th Congress made a serious attempt to reform the APA, and by implication, the administrative State, through the Regulatory Accountability Act (RAA). The RAA sought to reform the rulemaking process to ensure final rules were based on sound facts and law. The House passed the RAA. The Senate voted it out of committee; however, Senate leadership refused to bring it to the floor. This effort was Congress’ first and last serious attempt to reform the administrative State.

While Congress has shown little ability to control federal agencies, the courts are now recognizing that the U.S. has an out-of-control regulatory process in need of restraint.

In December, 2022, the Ohio Supreme Court, in TWISM Enterprises v. Board for Registering Professional Engineers, rejected โ€œ[A]ll forms of mandatory deference.โ€ The case involved a rule that independent contractors could not be in charge of engineering projects since they were not full-time company employees. The Ohio Engineering Board received judicial deference for its interpretation from the lower courts. The Ohio Supreme Court reversed, finding there was no statutory language precluding independent contractors from serving as full-time managers of an engineering firm. It held the principle of separation of powers precludes any mandatory deference to agency regulations that interpret a statute. Under the principle of separation of powers, only courts can interpret the law, not agencies. Deference to agencies produces “systematically biased judgmentsโ€ that permit the executive branch โ€œto say what the law means,โ€ a clear intrusion into judicial authority.

The Ohio court also noted, “Roughly half the states in the Union review agency interpretations de novo.โ€ The Ohio courtโ€™s decision provides the reasoning the U.S. Supreme Court needs to restore the principle of separation of powers at the federal level, a principle it abandoned in Chevron when it granted agencies almost unfettered discretion to create law.

Moreover, the U.S. Supreme Court is also moving to restrict agency lawmaking. In WVA v. EPA, the court reviewed an EPA rule that relied upon section 111 of the Clean Air Act to regulate the types and amounts of energy that could be carried on the electricity grid. Before EPAโ€™s “new found authority,” it applied section 111 only to specific energy sources at specific locations.

Like the Ohio court, the Supreme Court examined the power Congress granted the agency. It described EPAโ€™s attempt to assume โ€œunheraldedโ€ regulatory power as a โ€œtransformative expansion in [its]regulatory authorityโ€ over the American economy. It concluded Congress did not grant the agency the authority to set emission caps based on shifting the percentage generation of fuels that could be carried on the grid.

Recognizing that agencies use “vague language of a long-extant, but rarely used statute[s]โ€ to create new law,” it announced the โ€œMajor Questions Doctrine, requiring agencies to point to “clear congressional authorization” when issuing expansive rules.

The uncontrolled growth of the administrative State results from the Executive constantly seeking more power, courts that, until recently, fostered the expansion of executive power, and a Congress that has failed to provide aggressive oversight of agency actions and spending. If the courts continue to restrain the expansion of agency power, reform of the administrative State will be accomplished without Congress performing its constitutional duties.

If the U.S. Supreme Court, in its next deference case, adopts reasoning similar to the Ohio Supreme Courtโ€™s decision, and it actually enforces its “Major Questions Doctrine,” it will put federal agencies back into their constitutional boxes. At that point, going forward, all that is needed to maintain our constitutional separation of powers is for each branch to do its job by constantly checking the powers of competing branches.

William Kovacs
William Kovacshttps://www.reformthekakistocracy.com/
William Kovacs served as senior vice-president for the U.S. Chamber of Commerce chief-counsel to a congressional committee; chairman of a state environmental regulatory board; and a partner in law D.C. law firms. He is the author of Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens, winner of the 2021 Independent Press Award for Social/Political Change.

Remember Epsteinโ€™s โ€œLittle Black Booksโ€?

Image of Bill Clinton getting a massage from Jeffrey...

On the Major Leagueโ€™s periphery: A major trip through the minors

For Nick Dunn, the trek through the minors is a trifecta of physical, mental, and organizational hurdles filled with politics, roster volatility, and injuries.

Private Citizens are Now Looking into Epstein Client List

Most Americans have never felt so betrayed and confused by a president and his admin as they are by the Trump admin over the Epstein client list issue.

Peace In Ukraine Wonโ€™t End The Westโ€™s Hybrid War On Russia

The Westโ€™s Hybrid War on Russia to follow peace in Ukraine is inevitable due to neoconservatives and liberal-globalists in its decision-making ecosystem.

Epstein Case Closed?

The DOJ and FBI announced on Sunday evening of the July 4th holiday weekend that Jeffry Epstein had no client list and didnโ€™t kill himself in prison.

Federal Judge Blocks Trumpโ€™s Birthright Citizenship Order After Supreme Court Ruling

Judge barred Trump admin from enforcing EO limiting birthright citizenship, after Supreme Court restricted judges from issuing nationwide injunctions.

California Might Stop Making Necessary Debt Payments for 2 Years

California State Legislature met the budget submission deadline and it was signed by the governor, but they still need to cut $12 billion in spending.

MP Materials Secures Rare Earths Deal With DOD, Shares Surge 50 Percent

MP Materials Corp. announced a public-private partnership with the DOD to build out rare earth magnet supply chain and reduce dependency on China.

Ex-CIA Director Brennan Says DOJ Hasnโ€™t Contacted Him About an Investigation

Former CIA Dir Brennan said he hasn't been contacted by DOJ, FBI, or CIA following reports he and former FBI Dir. Comey are under investigation.

RFK Jr. Bans Illegal Immigrants From Government-Funded Programs

HHS Sec. Robert F. Kennedy Jr. is rescinding a 1998 interpretation of a law that allowed illegal immigrants to access certain government-funded programs.

Rubio Set to Visit Malaysia for ASEAN Meetings Amid Tariff Tensions

A delegation including U.S. Sec. of State Marco Rubio will travel to Kuala Lumpur, Malaysia, for series of high-profile meetings between July 11 and 12.

US Will Collect More Than $300 Billion in Tariff Revenues This Year, Treasury Secretary Says

U.S. is on track to potentially raise โ€œwell over $300 billionโ€ in tariff income by end of the year, Treasury Sec. Scott Bessent said during WH Cabinet meeting.

Senate Panel Advances Trumpโ€™s CDC Director Nominee

A Senate committee on July 9 voted to advance the nomination of Susan Monarez to lead the Centers for Disease Control and Prevention (CDC).
spot_img

Related Articles