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As the executive branch has grown more powerful, both conservatives and progressives fear the erosion of democratic representation. Many progressives today look to the courts to put the brakes on President Trump’s executive actions. And many conservatives see the administrative state (not Congress or the courts) as the biggest threat to constitutionalism. Fearing that the judiciary has become too deferential to administrative agencies, which have grown more powerful relative to Congress, these conservatives likewise look to the judiciary as a check on executive overreach. 

Such fears are misplaced, according to Nicholas Bagley, professor of law at the University of Michigan and expert on administrative law, regulatory theory, and health law. In the fourth episode of our podcast, “The Future of the Administrative State,” Bagley counters these critiques of executive power and the attendant calls for judicial intervention. What we really need, he thinks, is to empower the administrative state to carry out its duties more effectively. This will require better oversight of administrative actions. But that, Bagley insists, is the role of the legislative and executive branches, not the judiciary. What is called for is not more “judicial review,” but more “judicial humility.”

Of course, Bagley concedes that the “courts have a role to play in making sure agencies stay within their legal authorities and offer good reasoned explanations for what they do.” But courts should not go beyond that to usurp administrative duties, “interfering” with the day-to-day work of interpreting and implementing complex statutes. According to Bagley, courts are “ill-equipped to do so, they’re poorly positioned to do so,” and “they often don’t have great information upon which to base their decisions.” In other words, while the courts provide a kind of legal “backstop,” they should not “be in there reviewing agencies’ homework.” In short, Bagley argues, “that’s not really what judicial review is good at.” What judicial review is good at, he says, is saying “no” to particular actions when they stray outside legal boundaries.

Meanwhile, the entities that should be overseeing administrative agencies — such as the Office of Management and Budget’s Office of Information and Regulatory Affairs — are too focused on stopping them, Bagley thinks. Rather than “just saying ‘no’” — as the courts do — Congress and the executive should take a more proactive role in helping agencies “think about what it is they can do” and empowering them to do so. As Bagley tells it, the problem with the administrative state is not that it’s doing too much, but that “it’s not changing or keeping up with the times — that it’s doing too little.” And he sees this failure of constructive oversight as “institutionalizing” the administrative state’s inability to “tackle” “new and emerging” and often quite “difficult” problems.

It’s an unpopular message in our current political climate. As Bagley points out:

The notion that courts should exercise restraint is not going to be congenial to a lot of people on the Left, right now, given that president Trump is in office and he is such an object of scorn and derision from many members of the Left.

And, of course, in the post-Obama era, conservatives will bristle at the suggestion that we give more power to administrative agencies and encourage the courts to be more deferential to them. Indeed, Bagley concedes that his proposals will “scare” and “infuriate” those who oppose “the regulatory state write large.” But, he insists,

it’s important that we don’t warp administrative law to take into account the particular president we have at the moment, but think long term. What’s the best kind of approach we can have towards this regulatory state over time?

Critics of executive power may not be persuaded by Bagley’s answer to that question. But his emphasis on the impotence of the judiciary to fix what is broken in our current political system is something that should give pause to both progressive and conservative critics.

As Bagley points out, the courts “aren’t going to be the saviors of the administrative state if the administrative state is rotten to the core.” He is not persuaded that it is, or that we have a “rogue regulatory state that has slipped democratic control.” Nevertheless, he concedes that we “are seeing more…systematic problems of legal adherence” among agencies. But this, he thinks, is ultimately a result of “our dysfunctional politics.” When “a win for the current president is a loss for the other party that’s in Congress,” there’s “a huge temptation on the sitting president to try to go it alone.” Consequently, we get “more muscular exertions of authority” by the executive branch. But “the answer to that,” Bagley cautions,

is not…more judicial review. That’s just not going to work. That’s like the little boy putting his finger in the dyke. It’s just not enough; it’s too little too late. If you want to fix that problem about agencies overstepping their authority or wielding too much power, well the answer really is the ballot box and Congress.

Whatever we think of administrative power — whether it is vital to democracy or antithetical to it — this call to reinvigorate the mechanisms of self-government is one that should appeal to all of us, progressives and conservatives alike.

M. Anthony Mills is editor of RealClearPolicy.

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