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George Will / November 29, 2015

Standing Athwart the Administrative State

As the administrative state distorts America’s constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch.

As the administrative state distorts America’s constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch.

In four opinions in 112 days between March 9 and June 29, Thomas indicted the increasing incoherence of the court’s separation of powers jurisprudence. This subject is central to today’s argument between constitutionalists and progressives. The former favor and the latter oppose holding Congress to its responsibilities and restricting executive discretion.

“The Constitution,” Thomas notes, “does not vest the federal government with an undifferentiated ‘governmental power.’” It vests three distinguishable types of power in three different branches. The court, Thomas says, has the “judicial duty” to enforce the Vesting Clauses as absolute and exclusive by policing the branches’ boundaries.

Particularly, it should prevent Congress from delegating to executive agencies the essentially legislative power of formulating “generally applicable rules of private conduct.” Such delegation, Thomas says, erases the distinction between “the making of law, and putting it into effect.” This occurs when Congress — hyperactive, overextended and too busy for specificity — delegates “policy determinations” that “effectively permit the president to define some or all of the content” of a rule of conduct.

Today, if Congress provides “a minimal degree of specificity” in the instructions it gives to the executive, the court, Thomas says, abandons “all pretense of enforcing a qualitative distinction between legislative and executive power.” As a result, the court has “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”

Writing in National Affairs quarterly, Charles J. Cooper, who served in Ronald Reagan’s Justice Department, says the principles Thomas has articulated “attack the very existence of the modern administrative state.” This state, so inimical to conservatism’s aspiration for government limited by a constitutional structure of rival branches, depends on something conservatives too frequently and reflexively praise. It depends on judicial deference to the majoritarian institution of Congress even when Congress delegates its legislative powers to unaccountable agencies.

Cooper notes that in an 1887 essay, Professor Woodrow Wilson of Bryn Mawr College said that the complexities of modern life demand government by experts — administrators with “large powers and unhampered discretion.” Wilson, who became the first president to criticize America’s founding, regretted the separation of powers because he thought modern government required a clerisy of unfettered administrators.

When, during the New Deal, the court became permissive about Congress delegating essentially legislative powers, there was, Cooper says, “an implicit bargain: The court would permit Congress to delegate — and the administrative state to exercise — legislative, executive and judicial power, but it would review administrative exercises of such power to prevent lawlessness and abuse.”

However, three decades ago the court “reneged on the deal.” It decided that if a statute’s language is silent or ambiguous about a particular matter — as many statutes are because Congress is eager to delegate difficult decisions — the court would defer to the executive agency’s interpretation. It would because, the court said in a Wilsonian spirit, “judges are not experts in the field.” Today we are governed by Wilson’s clerisy, but it does not deliver what is supposed to justify the overthrow of James Madison’s constitutional system — efficient, admirable government.

Evidence that Congress may be rediscovering its institutional conscience was the maiden speech delivered this month by Nebraska Sen. Ben Sasse, a Yale Ph.D. (in history) and former college president. He rose from his desk — the one that formerly was used by another academic in politics, Daniel Patrick Moynihan — and asked: “Would anything be lost if the Senate didn’t exist?” He said: “The growth of the administrative state, the fourth branch of government, is increasingly hollowing out the Article I branch, the legislature — and many in Congress have been complicit in this.” Sasse promises more speeches detailing “how we got to the place where so much legislating now happens inside the executive branch — for this kind of executive overreach came about because of a great deal of symbiotic legislative underreach.”

In our system, Madison said, “Ambition must be made to counteract ambition.” Sasse, whose wholesome ambition is for his institution’s revival relative to the presidency, should walk across First Street, N.E., to the Supreme Court building, where he will find a kindred spirit.

© 2015, Washington Post Writers Group

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