MOBILE, Ala — American Enterprise Institute scholar Peter Wallison wants the public to join “a movement of some kind” to convince federal courts to roll back abuses of the administrative state. Here’s hoping that, popular movement or not, the Supreme Court takes Wallison’s advice.
Wallison spoke March 7 to the Mobile chapter of the Federalist Society, providing an overview of his new book, Judicial Fortitude: The Last Chance to Rein In the Administrative State. His warning was dire: “We will lose our democracy unless we can gain control of the administrative state.”
His thesis, most assuredly a correct one, is that Congress has allowed its constitutional lawmaking authority to be usurped by federal agency employees unaccountable to the public, and that the Supreme Court, failing its duty as “the guardian of the Constitution,” has wrongly refused to block the usurpation.
“It is the courts that have the ability to stop it, and the responsibility to stop it,” said Wallison, whose extensive resume included a stint as White House counsel under President Reagan. But, he said, it would help if the public would “show the Supreme Court that we care.”
As most lawyers well know, two Supreme Court precedents have been used to give bureaucrats the broad regulatory power they now enjoy. The Chevron case in 1984 effectively said the courts should defer to any (semi-)reasonable agency interpretation of a congressional statute, and the 1996 Auer case resulted in agencies being given almost unlimited deference in interpreting their own regulations. Wallison said the high court erred in these cases, failing to prevent the executive branch from assuming legislative powers.
Wallison said reformers can take heart, though. The Supreme Court already has heard oral arguments in a case called Gundy v. United States, which asks for “Chevron deference” to be limited, and on March 27 will revisit “Auer deference” in oral arguments in Kisor v. Wilkie.
Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, both thought to be skeptical of the extreme deference in Chevron and Auer, have now replaced Justices Antonin Scalia and Anthony Kennedy, who were full and partial advocates of those two precedents respectively. With at least three other justices seen as tending in the Gorsuch-Kavanaugh direction, Wallison said he hopes the court will put new restrictions on administrative overreach.
Anyone who has howled in frustration at overbearing regulators harassing them, or even treating them as criminals for innocently running afoul of confusing federal mandates, will appreciate Wallison’s message. Indeed, agencies have issued so many regulations carrying criminal penalties that respected lawyer Harvey Silverglate argued in a 2009 book that each American on average commits Three Felonies a Day without even realizing it, much less having any intention of breaking a law.
“It’s very important for the American people to understand what the stakes are,” Wallison said. He’s right.
