SOMETHING THERE IS THAT DOESN'T LOVE A WALL.

• Author: Stegall, Caleb

INTRODUCTION

Administrative law was on the ballot in Kansas last year. As one glossy mailer declared, "[u]nelected bureaucrats make whatever regulations they want" and Kansans ought to vote yes on a proposed constitutional amendment in order to "give every Kansan a voice in state government." (1) The so-called "legislative veto" amendment--which was narrowly defeated--would have given the Kansas Legislature the ability to override executive branch rules and regulations by a simple majority vote. (2) I highlight the mailer and its message not to agree or disagree with it, but simply because it clarifies the core question of administrative law--who decides?

The mailer also offers a typical framing of the debate--either unelected bureaucrats decide, or ordinary Kansans do through their elected representatives. As Philip Hamburger recently put it, administrative law may become an "extralegal regime" if it "evades not only the law but also its institutions, processes, and rights. The central evasion is the end run around acts of [the legislature] and the judgments of the courts by substituting executive edicts." (3) Professor Hamburger suggests that administrative law is a threat to "popular political power" devised by a "rulemaking class" which has "a dim view of popularly elected legislatures and a high view of its own rationality and specialized knowledge." (4)

Striking the same chord, Kansas Attorney General and recent candidate for Governor, Derek Schmidt, campaigned on the idea that--as he put it--"the people's elected representatives in Congress, not unelected bureaucrats, make the law. Reestablishing democratic control over the sprawling federal bureaucracy is, in my view, one of the most important steps we must take to preserve liberty for future generations." (5) For similar reasons, he urged voters to adopt the amendment because it "would return lawmaking authority to the lawmaking branch of government, the branch closest to the people." (6)

But as the defeat in Kansas of this particular amendment shows, not everyone is worried about "unelected bureaucrats" running wild. Many Kansans likely agreed with the Wichita Eagle when it opined that talk about unelected bureaucrats was a "cheap scare [tactic]" designed to hide the fact that state employees in the executive branch--presumably hard-working and disinterested professionals--are "selected for their expertise in specialized fields such as public health and safety, utilities, the environment, pharmacy, nursing, optometry, dentistry and embalming, just to name a few." (7) A former chair of the Kansas Democratic Party put it more bluntly: "It's open season on the administration's ability to run the government." (8) Whatever view one takes, the proposed amendment and the arguments surrounding it are ample evidence that administrative law remains a controversial and dynamic area of law--in Kansas and around the nation.

1. A BRIEF HISTORY OF SEPARATION OF POWERS IN KANSAS

   Answering the question "who decides?" in matters of law and government is inextricably tied to deeper questions about the structure of government and its divisions of power between and among separate governing departments. Any discussion of administrative law--even a brief survey such as this--must begin with a history of the doctrines of separation of powers as they have developed within a particular jurisdiction. In Kansas, that history reveals evolving standards that remain dynamic and in flux.

   In the decades following statehood, the Kansas Supreme Court routinely adhered to a principle of strict separation of powers as illustrated by our turn-of-the-century decision in State v. Johnson. (9) In Johnson, we struck down a legislative conferral upon the judiciary of the power to set railroad rates, holding that "the functions of the three departments should be kept as distinct and separate as possible, except so far as the action of one is made to constitute a restraint upon the action of the other." (10)

   The Johnson rule is one forerunner to the federal non-delegation doctrine. Keith Whittington and Jason Iuliano have explained that doctrine by noting that while "[t]here is no explicit textual prohibition on the delegation of legislative power to other actors, ... such a rule has long been thought implicit in the U.S. Constitution," as the "very idea of a separation of powers might suggest that executive officials should refrain from, or be barred from, exercising legislative powers." (11) These scholars write that "[c]onsolidating the legislative and executive functions in the same hands has long been seen as a serious threat to liberty, and a core principle of liberal constitutional theory was to separate those distinct governmental functions in distinct governmental organs." (12) Yet federal courts have typically upheld such delegations of legislative power by Congress so long as Congress also provides an "intelligible principle" to guide executive or judicial actors. (13)

   In Kansas, the strict Johnson principle of non-delegation did not carry the day. Instead, in decisions both before and after Johnson, Kansas courts have genuflected to the principle that "the legislature possess[es] all the legislative power of the state [and] cannot delegate any portion of that power" but have nevertheless reasoned that given the variegated and complex society we live in, "it is generally found impracticable for [the legislature] to exercise this power in detail." (14) Thus, in Coleman v. Newby, (15) the court held that the legislature "may mark out the great outlines, and leave those who are to act within these outlines to use their discretion in carrying out the minor regulations." (16) This paint-by-numbers approach allowing executive agents to fill in the blank spaces left in broadly written statutes has been the governing rule in Kansas for all of our history. (17)

   Administrators have, however, repeatedly been told that they must color within the lines. Which is to say that our delegation doctrine is not without limits. Kansas law does recognize that "some direction must be given in order for a legislative delegation to be constitutional" and typically when challenges arise, they focus on the adequacy of that legislative standard. (18) The legislature must--at minimum--guide agencies by "conditions, restrictions, limitations, yardsticks, guides, [or] broad outlines" which function as "adequate ... guide rules" for agency action. (19)

   The flexible and cooperative approach taken by Kansas courts to legislative delegations of power has--since the mid-twentieth century--come to define the separation of powers more broadly in Kansas. By the 1950s, the Kansas Supreme Court had completely abandoned the Johnson rule of strict separation. The court regularly refused to strike down governmental combinations of power in one place, often in the name of what was "practicable." (20) By 1976, in State ex rel. Schneider v. Bennett, (21) Kansas courts settled on a four-factor "balancing" test--still applied today (22)--intended to permit cooperative sharing of power among the branches of government so long as no specific combination created a "significant interference" with the independent functioning of any department of government. (23)

   Soon after, in State v. Mitchell, (24) the cooperative nature of power sharing among the branches of government in Kansas was clarified when the Kansas Supreme Court adopted a rule of acquiescence. (25) In Mitchell, the court was required to determine "whether the Supreme Court has exclusive constitutional power to make rules pertaining to court administration...." (26) In deciding whether a legislative enactment dictating a rule of court procedure violated the separation of powers...