WHICH BRANCH OF GOVERNMENT DOES THE ADMINISTRATIVE STATE EXTEND?

The Supreme Court heard arguments in Trump v. Slaughter ostensibly focusing on the powers a president has to fire supposedly nonpartisan experts in government agencies.  The case offers lots of material for a student of the independent regulatory commissions, not that I'm going to come out of retirement and do so.  Power Line's John Hinderaker, a lawyer, summarizes as "The case tests the constitutionality of the 'independent agencies' that Congress has established over the years–independent, because their commissioners are not under the control of the president."

In the regulated industries setting, those "independent agencies" began as creatures of the legislature.

Legislatures established independent regulatory commissions, which had the power to authorize entrants and approve the rates the firms so authorized (traditionally railroads, electric power companies, coal or natural gas producers, and telephone companies) could charge.  Those commissions would hold public hearings, withdraw to the secular version of the Sistine Chapel, and issue certificates permitting some entrants to operate whilst denying them to others, as well as to approve rates.  Loosely, these commissions had a role similar to district courts as finders of fact and application of the law, and affected parties could appeal the rulings to the state or federal appellate courts, and some such proceedings ultimately were appealed to state or national supreme courts.

In principle, the concept of the independent commission is a delegation of powers from the executive and legislative functions of government to subject specialists, holding the ability to implement legislative intent without burdening those legislators with determining what the price of a streetcar ride or the content of a sandwich served to economy class fliers was to be.

Like most principles, the concept sounded better on paper or sketched on a chalkboard than they did in practice.  A left-leaning commentator of the nineteenth century responded to the creation of the Interstate Commerce Commission with an epigram to the effect of the agrarians and the communists getting their laws, and the robber barons keeping their railways.  The same lesson applies to any other independent regulatory commission, or to the more recent administrative state agencies to which we turn.

More recently, the administrative state agencies have become extensions of the presidency.  "Technocracy has a number of intellectual sires, including Herbert Croly, Woodrow Wilson, and A. C. Pigou."  In going from the independent regulatory commissions to "The Secretary shall issue regulations," though, generations of politicians, with or without the connivance of lawyers, have created a constitutional anomaly.  "On the legal side, and I repeat my caveat, econ guy writing here, the reasoning by which Congress could pass an Act to Regulate Commerce (thus creating the Interstate Commerce Commission) could be used to create all manner of independent regulatory agencies, and in econ, our concern was more about regulatory capture by the entities being regulated, and that only got stronger once rent seeking became a new term of art."

Mr Hinderaker argues from the perspective that rulemaking, whether carried out by an independent commission such as the Federal Trade Commission or done under the rubric of "The Secretary shall issue ..." is ultimately subsumed under the presidency.

Professor Phil Hamburger’s book Is Administrative Law Unlawful? is seminal here. Professor Hamburger addresses the issue more briefly here.

I have often said that the government we live under is not the one that is described in the Constitution. A principal reason for this is that the branch of government that exercises the most power over us is the Fourth Branch, the one that the Constitution never mentions: the unelected alphabet soup of “independent” federal agencies. If the Court rules in the Administration’s favor, it will go a considerable distance toward establishing constitutional government, as well as political accountability. The president will now be responsible for the entire executive branch, and will be able to implement his or her policies throughout the executive branch. Which no doubt is what voters thought was happening all along.

Outside the Beltway's Steven Taylor frets, though, that expanding a president's ability to put his loyalists into the independent commissions and middle management positions helping the secretaries issue regulations raises the spectre of the spoils system combined with a loss of Expert Wisdom.

Congress intended to protect these agencies from partisan pressures and charged them with protecting consumers, workers and the environment.

In simple terms, if the Court does as it appears poised to do, it will radically reconfigure the way government works in the United States by basically making agencies designed to function as the result of rolling appointments of experts to slowly reflect evolving national politics/balancing partisan influence (a notion that is, I would note, inherently conservative, if we are to use the word’s actual meaning) to one that will allow a new president to make sweeping changes every four years. It will gut expertise and increase personalistic rule by a given president. It will also invite corruption and diminish basic governmental capacity.

If we need an illustration of what this means, consider the way in which Health and Human Services and the Center for Disease control has been turned into a playground for the ideological fever dreams of people like Robert F. Kennedy, Jr. and Mehmet Oz and how even if a new administration comes in and says that we are going back to “normal” on vaccines how hard accomplishing that goal will be.

"Expertise" is an artifact of who is doing the hiring.  Again, econ guy posting here: eighty to a hundred years of bureaucrats trained in the Welfare Economics Paradigm and vetted by Democrats is going to fill the Federal Register with a very different slate of regulations than one staffed by people who might understand Austrian price discovery and vetted by libertarian Republicans.

The stumbling block, going back to Chevron, has always been turf fights in the swamp, particularly if it's Republican cabinet secretaries taking on long-tenured salaried employees marinated in Progressive Era conceits.  (Yes, even though forty years ago it was Reagan Administration bureaucrats in the early EPA complaining about interference from judges appointed by the likes of Lyndon Johnson and Jimmy Carter!)  That's complicated by the path from "The Secretary shall issue" to the salaried employees who draft the regulations, which Law and Liberty's Adam White recognizes.

But Professor Taylor and new associate justice Jackson, whose "So having a president come in and fire all the scientists, and the doctors, and the economists and the PhDs, and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States" during arguments, which has drawn scorn from the Militant Normals, take the view that some sort of stability in executing the existing regulations and drafting new ones, which evolves slowly, has its value.  Unfortunately, the Expert Class has not covered itself with glory of late.  The Centers for Disease Control seriously mishandled the coronavirus shutdowns, which might have opened the door for the Trumpian restructuring at Health and Human Services, and what Strong Towns contributor Edward Erfurt notes about local zoning probably generalizes to the issuance of regulations governing automotive safety or the labelling of food.

Public meetings are often framed as moments of community input, but in reality they function as the collision point between human expectation and bureaucratic limitation. People show up wanting to talk about quality of life, identity, values, and future aspirations. The believe they have been invited into the process to provide public participation. Yet, the system only allows responses in the form of best possible outcome are further technical constraints.

This mismatch produces outrage, not because people are uncivil, but because the system itself is non-responsive. A living city requires conversation, adaptation, intuition, and empathy. Zoning offers none of these. Zoning at its best only offers rules, procedures, and compliance pathways. And when the mechanisms we use to guide change cannot respond to human needs, the people within the system begin to assume that engagement itself is pointless. Cynicism spreads. Outrage fills the vacuum.

And zoning at least takes place locally, with residents affected by the rules changes able to show up and comment, even if the Wise Experts Hide Behind Process and frustrate all the comments because reasons.  Regulations emanating from Washington?  If you know how to sort through the Federal Register and participate in the Comments Period, there's a chance somebody will read them.  It's a good bet that the rent-seekers affected by the proposed regulation will do all of that.  Joe Citizen?  Not so much.

What will come next?  Check out the Scotusblog summary of the arguments.  Reason's Damon Root sees questioning that might transcend ideology.

Kagan, the liberal jurist, was in a sort of harmony with Gorsuch, the conservative textualist, about the fact that Congress has relinquished many lawmaking powers to federal agencies.

Yet only Gorsuch seemed interested in taking Congress to task for its role in creating the problem. It was Gorsuch, not Kagan, who pointed out that Congress was guilty of abdicating the lawmaking authority that Congress itself should have been jealously guarding. And it was Gorsuch, not Kagan, who also pointed an accusing finger at the Supreme Court's own permissive brand of judicial review in past delegation cases. "Is the answer," Gorsuch asked, for the Court to "recognize that Congress cannot delegate its legislative authority?"

That is almost certainly not going to be the Supreme Court's answer in this case, although I do look forward to reading a possible Gorsuch concurrence that argues for limiting the power of the executive through the use of the non-delegation doctrine.

We're right back where we started from.  The Illinois legislature is of the view that Chicago transloading grain elevators "take but a reasonable toll."  They don't want to determine each growing season what that reasonable toll is.  Everything else follows from there.  Common Dreams looks at the danger in making the independent agencies too explicitly extensions of the executive.

On Monday, Josh Orton, director of judiciary reform group Demand Justice, said there was “grave danger in what the Supreme Court appears willing to do today: hand giant corporations and Donald Trump’s billionaire class unchecked power over our economic system, gutting one of the few institutions left that’s charged with ensuring fairness, stability, and competition in our economy.

“For generations, independent federal agencies, including the Federal Trade Commission and the Federal Reserve, have proven essential to the long-term stability of our country and markets—all to the benefit of workers, consumers, and businesses alike,” said Orton.

That's a statement likely to upset libertarians, fans of neither the Federal Trade Commission nor the Federal Reserve, although they'd likely concur with the risks of letting Donald Trump have more executive powers.  It came to this, though, when Woodrow Wilson first made the case for the presidency exercising more powers through the administrative state.  Sooner or later there would arise a president who had a different notion of the General Will than a Wilson or a Roosevelt envisioned.