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Empowering the Administrative State

Empowering the Administrative State
AP Photo/J. Scott Applewhite

Dear Reader —

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. 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 it. 

It’s an unpopular message in our current political climate. As Bagley points out, the notion that courts should be more deferential to the executive “is not going to be congenial to a lot of people on the Left, right now,” given who currently occupies the Oval Office. And, of course, many conservatives will bristle at the suggestion that we give more power to administrative agencies. But, Bagley insists, “it’s important that we don’t warp administrative law to take into account the particular president we have at the moment.” The question we should be asking is “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 progressive and conservative critics alike.

These are some of the many issues taken up at RealClearPolicy over the past week. Below you will find just a few highlights.

— M. Anthony Mills, editor | RealClearPolicy

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The Coastal Elite Is Real. I’m Part of It. In Talk Poverty, Linda Tirado argues progressives ignore the reality of elitism at their peril.

Anti-Administrative State or Just Pro-Market Power? The American Prospect’s Justin Miller contends that Republican efforts to weaken the Consumer Financial Protection Bureau serve corporate interests. 

A Basic Income Really Could End Poverty Forever. Vox’s Dylan Matthews makes his case here

Democrats Should Embrace a Federal Jobs Guarantee. In The New Republic, Bryce Covert suggests a way Democrats can appeal to working Americans.

Saving Net Neutrality Requires Bipartisanship. In our own pages, Harold Ford Jr. argues that legislation is a better way to save net neutrality than FCC action.

The GOP’s Collision with Health Care Reality. In RealClearHealth, James Capretta lays out why the health care kerfuffle was bound to happen.

Our Economy Should Produce Both Wealth & Work. For City Journal, Russell Muirhead argues that automation will not totally displace physical work.

A Sensible Constraint on State Sales Tax. Also in our pages, Skip Estes makes a case against taxing online retailers. 

The End of the Grand Bargain. In National Review, Max Bloom laments the disappearance of the spirit of bipartisan compromise on Capitol Hill. 

The EPA Is Everywhere. Also in RealClearPolicy, Ted Hadzi-Antich and Ryan D. Walters urge the agency to reconsider a key portion of the Clean Power Plan.

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