Judicial Fortitude: The Last Chance to Rein in the Administrative State.

• Author: Kapp, Marshall B.
• Position: Book review

Judicial Fortitude: The Last Chance to Rein in the Administrative State

by Peter J. Wallison

Neither Congress nor the federal judiciary perform the key roles assigned them by the Constitution very well, attorney-author Peter J. Wallison contends convincingly in this extended essay. He laments the consequent historic rise (beginning in the Progressive Era) and present dominance of a multitude of unelected and effectively unaccountable administrative agencies bureaucratically making, interpreting, and enforcing the public policies that govern all our lives. This unfortunate situation has been allowed to materialize, Wallison cogently explains, for two related reasons. First, elected legislators have grown politically comfortable with enacting vague statutes announcing nondelineated, uncontroversial but meaningless goals ("make the world a nicer place") and ordering specific administrative agencies to promulgate and then enforce detailed regulations to accomplish the legislatively stated goal; this is done instead of the difficult job given Congress in art. I, as the elected branch of government, of making the sorts of policy choices necessary for representative governance. The legislative malfeasance is compounded by the federal courts' modern seeming unwillingness to require Congress to state in its enacted statutes clear "intelligible [policy] principles" to guide agency rulemaking (the nondelegation doctrine). Moreover, even when Congress has made a policy choice and sufficiently stated an intelligible principle for empowering the agency to fill in the administrative details of the legislative plan, the Supreme Court's Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), decision compels courts to defer to an agency's own regulatory interpretation of the statute the agency is claiming as the source of its legal empowerment, hence precluding judicial questioning about whether the agency's promulgated rules and enforcement actions accurately conform to congressional language and intent.

The problem with all this, the author warns, lies with the resulting danger to the structural scheme of government carefully embodied in the U.S. Constitution, namely, the system of separation of...