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The Supreme Court 2016 Term Foreword VOLUME 131 NOVEMBER 2017 NUMBER 1 © 2017 by The Harvard Law Review Association THE SUPREME COURT 2016 TERM FOREWORD: 1930S REDUX: THE ADMINISTRATIVE STATE UNDER SIEGE Gillian E. Metzger INTRODUCTION ................................................................................................................................ 2 I. THE CONTEMPORARY ATTACK ON THE ADMINISTRATIVE STATE ............................ 8 A. The Political Attack .............................................................................................................. 9 B. The Judicial and Academic Attack ................................................................................... 17 1. Separation of Powers .................................................................................................... 17 2. Subconstitutional Doctrines and the Separation of Powers .................................... 24 3. Other Constitutional Claims ........................................................................................ 28 4. Academic Attacks ........................................................................................................... 31 C. Contemporary Anti-Administrativism’s Core Themes .................................................... 33 1. Rhetorical Anti-Administrativism ............................................................................... 34 2. The Judicial Turn .......................................................................................................... 38 3. Constitutionalism and Originalism ............................................................................. 42 D. Does Contemporary Anti-Administrativism Matter? ..................................................... 46 II. 1930s REDUX I: TWENTIETH-CENTURY CONSERVATIVE RESISTANCE TO ADMINISTRATIVE GOVERNMENT ..................................................................................... 51 A. The Liberty League and the ABA Special Committee .................................................... 52 1. The Liberty League ........................................................................................................ 53 2. The Special Committee ................................................................................................. 57 3. The Entrenchment of the National Administrative State ........................................ 59 B. The Contemporary Relevance of the League and the Special Committee ................... 62 III. 1930s REDUX II: THE ADMINISTRATIVE STATE AND EXECUTIVE POWER ............ 71 A. The Brownlow Committee and Presidential Administration ........................................ 72 B. The Administrative State’s Constitutional Functions .................................................... 77 1. Bureaucratic Supervision and Internal Constraints ................................................ 78 2. Effective Governance ..................................................................................................... 85 C. The Administrative State as Constitutionally Obligatory ............................................. 87 1. Delegation and Its Implications .................................................................................. 87 2. Delegation and Current Anti-Administrative Challenges ......................................... 92 CONCLUSION ................................................................................................................................... 95 1 THE SUPREME COURT 2016 TERM FOREWORD: 1930S REDUX: THE ADMINISTRATIVE STATE UNDER SIEGE Gillian E. Metzger INTRODUCTION ighty years on, we are seeing a resurgence of the antiregulatory and Eantigovernment forces that lost the battle of the New Deal. President Trump’s administration has proclaimed the “deconstruction of the administrative state” to be one of its main objectives.1 Early Trump executive actions quickly delivered on this pledge, with a wide array of antiregulatory actions and a budget proposing to slash many agencies’ funding.2 Invoking the long-dormant Congressional Review Act3 (CRA), the Republican-controlled Congress has eagerly repealed numer- ous regulations promulgated late in the Obama Administration.4 Other major legislative and regulatory repeals are pending, and bills that would impose the most significant restrictions on administrative gov- ernance since the Administrative Procedure Act (APA) was adopted in ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Stanley H. Fuld Professor of Law, Columbia Law School. Many thanks to Jessica Bulman- Pozen, Ariela Dubler, Dick Fallon, Barry Friedman, Jesse Furman, Michael Hyman, Vicki Jackson, Jeremy Kessler, Tom Merrill, Henry Monaghan, Anne Joseph O’Connell, Eric Posner, David Pozen, Daphna Renan, Neil Siegel, Kevin Stack, Peter Strauss, Kristen Underhill, Adrian Vermeule, Laura Weinrib, as well as commenters at faculty workshops at Chicago, Duke, Harvard, and Penn law schools, for their very helpful (and speedy!) comments and suggestions — especially to those who willingly undertook multiple reads. Zachary Bannon and Eve Levin provided excellent research assistance. Particular thanks to the Harvard Law Review editorial board and staff for their excellent editorial suggestions and efforts in publishing this piece. 1 See Philip Rucker & Robert Costa, Bannon Vows a Daily Fight for “Deconstruction of the Administrative State,” WASH. POST (Feb. 23, 2017), https://www.washingtonpost.com/politics/top- wh-strategist-vows-a-daily-fight-for-deconstruction-of-the-administrative-state/2017/02/23/03f6b8 da-f9ea-11e6-bf01-d47f8cf9b643_story.html [https://perma.cc/8KJ3-5TRR]. Although the Trump Administration official who made this proclamation, Steve Bannon, has since been removed from his position as President Trump’s Chief Strategist, that removal is unlikely to result in a large-scale change in the Trump Administration’s objectives with respect to the administrative state. See Donald J. Trump (@realDonaldTrump), TWITTER (Aug. 29, 2017, 5:26 AM), https://twitter.com/ realDonaldTrump/status/902507855584092160 [https://perma.cc/8LFX-LCGH] (reiterating the need to “reduce [the] size of government”); see also Josh Dawsey & Nolan D. McCaskill, Bannon Out as White House Chief Strategist, POLITICO (Aug. 18, 2017, 6:16 PM), http://www.politico.com/ story/2017/08/18/bannon-out-as-white-house-chief-strategist-241786 [https://perma.cc/DJH2-JJ5D]. 2 See infra pp. 9–11. 3 5 U.S.C. §§ 801–808 (2012). 4 See infra pp. 10–11. 2 2017] THE SUPREME COURT — FOREWORD 3 1946 — like the proposed Regulatory Accountability Act (RAA) — now stand a chance of enactment.5 This resistance to administrative govern- ment reflects antigovernment themes that have been a consistent pres- ence in national politics since President Reagan’s election in 1980.6 But the immediate trigger for the current resurgence of attacks on the ad- ministrative state is the national regulatory and administrative expan- sion that took place under President Obama.7 Of particular relevance here, an attack on the national administra- tive state is also evident at the Supreme Court. The anti-administrative voices are fewer on the Court than in the political sphere and often speak in separate opinions, but they are increasingly prominent.8 Led by Justice Thomas, with Chief Justice Roberts, Justice Alito, and now Justice Gorsuch sounding similar complaints, they have attacked the modern administrative state as a threat to liberty and democracy and suggested that its central features may be unconstitutional.9 Conserva- tive legal scholars have joined the fray, issuing a number of academic attacks on the constitutionality of the administrative state that conserva- tive jurists then feature prominently in their opinions.10 These judicial attacks on administrative governance share several key characteristics: they are strong on rhetorical criticism of administrative government out of proportion to their bottom-line results; they oppose administration and bureaucracy, but not greater presidential power; they advocate a greater role for the courts to defend individual liberty against the ever- expanding national state; and they regularly condemn contemporary na- tional government for being at odds with the constitutional structure the Framers created, though rarely — with the marked exception of Justice Thomas — do they develop this originalist argument with any rigor.11 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 5 See infra section I.A; see also Regulatory Accountability Act of 2017, S. 951, 115th Cong. (2017); Regulatory Accountability Act of 2017, H.R. 5, 115th Cong. (2017). 6 See infra p. 14. 7 See, e.g., THEDA SKOCPOL & VANESSA WILLIAMSON, THE TEA PARTY AND THE RE- MAKING OF REPUBLICAN CONSERVATISM 5–10, 31–32, 77–82 (2012) (tying Tea Party mobiliza- tion to President Obama’s progressive policy agenda); Zeke J. Miller, President Trump’s Lawyers Plan a White House Legal Attack on Federal Agency Power, TIME (Mar. 13, 2017), http://time.com/ 4700311/donald-trump-white-house-counsel-steve-bannon [https://perma.cc/M7SP-JFN7] (“But the fight against [the administrative state’s] growth became a crusade during the Obama years, partic- ularly in conservative legal circles as they watched the former president rel[y] on regulatory action to circumvent an obstructionist Congress.”); see also Robert Moffit, Todd Gaziano & Joseph Postell, How to Limit Government in the Age of Obama, HERITAGE FOUND. (June 25, 2013), http://www. heritage.org/political-process/report/how-limit-government-the-age-obama
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