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 Executive’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 “[A]ll forms of mandatory deference.” 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 judgments” that permit the executive branch “to say what the law means,” a clear intrusion into judicial authority.

The Ohio court also noted, “Roughly half the states in the Union review agency interpretations de novo.” The Ohio court’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 EPA’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 EPA’s attempt to assume “unheralded” regulatory power as a “transformative expansion in [its]regulatory authority” 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]” to create new law,” it announced the “Major 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 Court’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.

Is America Broke?

Silicon Valley investor and economic commentator Balaji Srinivasan made...

Hungary: Pride™ Cometh Before the Color Revolution

The EU engaged in a diplomatic siege of the Eastern European nation-state of Hungary pressuring it into embrace global trannyism or face wrath of Brussels.

Understanding the Trump/Musk Feud

The passion Trump and Musk exhibit over the OBBB is not contrived or for show. Each is addressing the problem from completely different approaches.

Who’s Your Mamdani?

Former state assemblyman Mamdani, a failed rapper, has repackaged himself as a "democrat socialist." In laymen's terms he's a Socialist. Way to go Democrats!

The Latest Trouble In Russian-Azerbaijani Relations Might Be Part Of A Turkish-US Powerplay

Could trouble in Russian-Azerbaijani relations be part of a Turkish-US powerplay, which Trump could have agreed to with Erdogan and Aliyev?

Bryan Kohberger Pleads Guilty in Stabbing Deaths of 4 University of Idaho Students

Bryan Kohberger, charged in the stabbing deaths of 4 University of Idaho students in 2022, entered a guilty plea deal to spare him the death penalty.

Judge Blocks Trump’s Order Barring Illegal Border Crossers From Claiming Asylum

A federal judge ruled against a Trump administration policy that blocks foreign nationals who cross the U.S.-Mexico border from seeking asylum.

The Dollar Dilemma During Trump 2.0

The U.S. dollar index, a gauge of the buck against currencies including the euro and the yen, has declined by almost 11% to its lowest level in 3 years.

California’s Gas Prices Are 50% Higher Than the National Average, What’s Next? | Michael Mische

On California Insider, USC professor Michael Mische examines how shifts in where California gets its fuel could affect local prices.

Bessent: US, India Near Agreement to Lower Tariffs

The United States and India are “very close” to a trade agreement, Treasury Secretary Scott Bessent said on Tuesday.

Federal Agencies Terminate Contracts With Springer Nature

Multiple federal agencies ended contracts with Springer Nature, publisher of journal Nature, according to spokespersons and a govt database.

Investors Shrug Off Prospects of Higher Tariffs as US Stocks Post Record High

Wall Street shrugged off the prospects of higher U.S. tariff rates as stocks registered all-time highs to finish the raucous second quarter.

Trump Suggests DOGE Look at Subsidies for Musk’s Companies

Trump suggested DOGE examine subsidies given to Musk’s companies after Musk vowed to primary lawmaker who support Trump's budget reconciliation bill.
spot_img

Related Articles

Popular Categories

MAGA Business Central