The Counter-Reformation of American Administrative Law

Abstract

The Roberts Court’s most important project is nothing less than a counter-reformation of administrative law. Its originalist and formalist majority believes that the modern administrative state operates inconsistently with the constitutional separation of powers, at least when that state affects the private rights of citizens. As a result, it wants to require Congress to make the important rules, the President to control the executive branch, and the judiciary to determine the meaning of law without categorical deference to administrative agencies.

Yet the Roberts Court faces years of precedent establishing the modern administrative state under a far less strict conception of the separation of powers. This Article catalogues and, given the Court’s separation of powers premises, justifies both the scope of its changes and the doctrinal methods it deploys to create a counter-reformation that will nevertheless permit the modern administrative state to continue to function. This Court has made the most dramatic constitutional changes in executive branch appointment and removal, creating a more hierarchical branch under the control of the President. Here, it faces relatively few reliance interests and has a willing partner in the executive branch to push the boundaries of its decisions further. In contrast, reviving the constitutional nondelegation doctrine to require Congress to make clearer policy decisions risks upsetting much of administrative law. Thus, the Roberts Court has created a more modest shadow statutory doctrine which requires Congress simply to be explicit about its major grants of powers. It has also reclaimed judicial powers of interpretation simply by becoming a more formalist Court with the confidence to use its own interpretative tools to disambiguate statutes, leaving little room for deference to administrative agencies under Chevron and Auer. It has the power to change the judicial role, because it sits at the apex of the judiciary. Administrative law today is thus characterized by a relentless—if on account of the constraints of precedent, sometimes indirect—restoration of a strict view of the separation of powers.

Keywords: Administrative Law, Separation of Powers, Chevron, Roberts Court, Precedent

JEL Classification: K10, K30