Returning to a Constitutional Judiciary   Leave a comment

Nothing shows the problem of the administrative state as much as the Supreme Court ruling on health care. The Constitution is fairly clear that the federal government cannot regulate non-activity; clear enough that precedent has always ruled against it. That SCOTUS ruling was a shock to most who have read the Constitution, but it merely was a symptom of the increasing growth of the administrative state.

By law, Congress defines the scope of judicial review of administrative decisions, but since the creation of administrative state, the scope of judicial review of administrative decisions has become quite limited. The courts have adopted a deferential position in the face of agency actions. In fact they have an important role to play in restoring the rule of law and preserving the rights of individuals against potentially arbitrary and capricious administrative action.

Congress should consider revising the law to create more rigorous standards of judicial review of administrative decisions. Once parties affected by administrative decisions finally navigate the internal agency appeals process and reach an independent judge, Congress could ensure that the judge would review the decision rigorously. They should not have the option to give the agency the benefit of the doubt when its decision is under review in court.

Congress should ensure that agencies’ interpretations of their own laws are heavily scrutinized by reviewing courts. This would subject the administrative state to the check of judicial review, restoring some semblance of separation of powers. Judicial scrutiny of administrative policymaking has been on the rise over the past few decades, but it has occurred largely on the initiative of the judges themselves through expansive interpretation of certain provisions of the Administrative Procedure Act.

Congress could revise the Administrative Procedure Act to reiterate that reviewing courts can determine all issues of legal interpretation without any deference to the agency or department under review.

Congress could apply these standards for judicial review across all agencies and departments or only for certain types of administrative actions such as informal rulemaking, interpretative rulemaking, and issuance of policy statements and guidance documents. Using these less formal ways of crafting rules that have the force of law, agencies often issue vague rules and then explain those rules to regulated parties by issuing memos and opinion letters to them. Congress can require that courts reviewing such informal decisions by agencies be subject to expedited judicial review, meaning that affected citizens could go to an independent court without exhausting internal agency appeals.

When agencies know they will not receive deference from a reviewing court for using informal procedures such as opinion letters, guidance documents, and interpretative rules to make policy, they will have greater incentives to employ the normal procedures for rulemaking that are set-forth by the Administrative Procedure Act.

To assure judicial expertise in the review of administrative policymaking, specialized courts could be established in the most complex areas of policymaking to enhance judicial expertise, similar to the specialized jurisdiction Congress gave the Federal Circuit Court over patents, trademarks, and international trade disputes.

These reforms could be used as incentives to encourage agencies and departments to follow adequate procedures before making decisions that affect citizens and regulated companies. This would go hand in hand with Congress’s restoration of the formal rulemaking process originally envisioned by the Administrative Procedure Act. Adjusting the scope of judicial review of agencies in these ways creates procedural protections from arbitrary decisions and checks administrative action by subjecting it to judicial oversight.

The courts can help to check the administrative state by embracing their traditional function of reviewing decisions made by administrators to ensure that those decisions are consistent with the rule of law and due process. Congress should restore the function of adjudication to the courts as much as possible and define the courts’ scope of review of administrative decisions to restore some semblance of checks on the administrative state.

The constitutional crisis provoked by the administrative state demands a thoughtful, principled, but also practical response. The ideal solution is for Congress to make the laws itself rather than delegating that power to agencies and departments. Yet there are other options for improving the situation. Enhancing presidential control of the administrative state and expanding the scope of judicial review of at least some administrative decisions while eliminating waivers and transferring the power of adjudication to independent courts would begin to rein in the administrative state so that the constitutional rights of the public are protected.

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