Author:Calabresi, Steven G.
Position:Response to Gillian E. Metzger, Harvard Law Review, vol. 131, p. 1, 2017

Gillian Metzger's 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modem administrative state, with its massive subdelegations of legislative and judicial power to so-called "expert" bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modem discourse than specifically to Professor Metzger's analysis, we challenge the normally unchallenged premise that the 1930s was a decade of moral wisdom about governmental design that should serve as a ground for constitutional reasoning that is superior to the actual text of the Constitution. The 1930s was a thoroughly awful time, worldwide and in the United States; and while America avoided some of the very worst trends of those times (although it was a worldwide leader in others, such as eugenics), the intellectual and political foundations of that decade were a terrible ground for theories of government. We do not make the absurd claim that everything that emerged from the 1930s was therefore bad simply by virtue of that origin, nor do we make the equally absurd ad hominem claim that everyone who supports anything from the 1930s must support everything from that time. We only want to call into question the (generally implicit) premise that the governmental forms of the 1930s are sacrosanct because that decade should be seen as the real constitutional founding. The intellectual foundations of the 1780s and 1860s--the decades that led to the ratification of the actual constitutional text and the Civil War Amendments--are far superior to those of the 1930s. To be clear, we think that constitutional interpretation should be about the Constitution, not about time periods, values, or constitutional "orders, " but if for some reason one wants to focus on time periods, the 1930s should be the last time period to which one looks for guidance.

Second, we offer some very modest legislative tweaks to the existing institutions of the administrative state that we believe will move American government more toward the correct constitutional baseline with only minimal changes in actual governmental functions. Major rules should be enacted using constitutional (if expedited) lawmaking procedures; all executive officers should, by statute if not by constitutional command, be made removable at will by the President; and all deprivations of life, liberty, and property by the federal government should be accomplished through due process of law, which means adjudication through an Article III tribunal. None of these tweaks requires abolition of any federal agency or repeal of any substantive organic statute. Adopting them will not establish constitutional government. But it will be better than abandoning the enterprise altogether in favor of rule by "experts" deemed Jit, by virtue of their college degrees, to govern their unenlightened "lessers."

INTRODUCTION 822 I. LOOKING TO THE 1930S? 826 A. It Was the Worst of Times 828 B. The Time of the Constitution 840 C. "Mine Eyes Have Seen the Glory": The Zeitgeist of 845 the 1860s D. The Present Day 849 II. THE ADMINISTRATIVE STATE AND THE SEPARATION OF POWERS 850 A. Administrative Agency Incursions on Legislative Power 853 B. Agencies and Presidential Power 859 C. Adjudication in Administrative Law 861 III. THE ADMINISTRATIVE STATE AND MAGNA CARTA 863 CONCLUSION 865 INTRODUCTION

He has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries. He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harrass our People, and eat out their Substance. (1) At Justice Elena Kagan's Supreme Court confirmation hearing, she famously said: "[W]e are all originalists." (2) We think that this pithy observation is clearly true. Everyone is an originalist with respect to something. This includes the mass of scholars and judges who purport to reject originalism. They do not actually object to originalism as a method for interpretation. They only object to it as a method for interpretation and/or application of the U.S. Constitution (and perhaps of statutes that they do not like). Scholars expect their books and articles to be read in light of their original intended meanings, and judges expect their opinions to be read in light of their original intended meanings. (3) The question, if the goal is successful human communication, is never whether one is seeking to ascertain original meaning. The questions are always of what one is seeking to ascertain original meaning and from when one is seeking to ascertain it.

Gillian Metzger's 2017 Harvard Law Review Supreme Court foreword, entitled 1930s Redux: The Administrative State Under Siege (4) is an example of a species of unacknowledged originalism in action. Professor Metzger sees--quite correctly--a growing set of judicial and academic concerns about the constitutionality of much of the modern American government; and she is afraid that those concerns, if taken seriously by real-world legal actors, might place roadblocks in the path of her favored political agenda. She accordingly argues at great length that the vast machinery of the modern federal government, which is typically described by the shorthand label "the administrative state," (5) is constitutionally permissible--and is even constitutionally mandated. (6) Her argument is strikingly originalist. But instead of seeking to ascertain the original meaning of the U.S. Constitution, using sources such as James Madison, Thomas Jefferson, and Alexander Hamilton, she instead tries to ascertain the original meaning of nonconstitutional ideas and institutions crafted in the 1930s, using sources such as James Landis, Louis Brownlow, and Felix Frankfurter, all of whom were either scholars or officials in Franklin D. Roosevelt's New Deal administration.

As do many modern academics and judges, Metzger starts her constitutional analysis in the 1930s. She takes the New Deal revolution as the big bang, which establishes the framework from which all subsequent legal analysis must proceed: "[W]e are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal." (7) She complains that accepting the constitutional critique of the administrative state "would require a reformation of the constitutional order that has governed for the last eighty years." (8) Any deviation from post-1930s institutional or intellectual developments is evidently suspect, and even sinister. (9)

We think it is liberty and republicanism that are under siege today from a bloated, arbitrary and capricious, dictatorial, elitist, electorally unaccountable, (10) and largely unconstitutional administrative state. As have progressives from the nineteenth century onward, Metzger celebrates the independence of the professionalized deep state, run by credentialed "experts," from political control. (11) Her argument is merely one piece of a much wider phalanx supporting modern bureaucratic government. Professor Jon Michaels, for example, has similarly defended "the project of twentieth-century administrative governance as a normatively and constitutionally virtuous one." (12) We consider this wrong on every possible level. We think, along with Lord Acton, that "[p]ower tends to corrupt and absolute power corrupts absolutely." (13) We believe in liberty and republican democracy (14) and not in government by Platonic philosopher kings who call themselves experts by virtue of their self-sanctioned credentials. More fundamentally, we believe in the Constitution as it is written, not in a faux "constitution" dreamed up by academics, lawyers, and politicians in the dreadful era of the 1930s. We are thus advocates of what Michaels calls "rote constitutional formalism," (15) though we prefer to call it "constitutionalism."

If one is going to engage in an originalist enterprise, as everyone does in some fashion, it is vital to make sure that one is interpreting the right thing and is doing it from the right time frame. We begin in Part I with the time frame by considering whether constitutional interpreters ought to select as their starting point the 1930s or whether they should begin reasoning from the 1780s, the 1860s, or even the post-World War II era, as we believe. We are not aware of any canonical normative defense of the 1930s as the proper time frame for grounding constitutional interpretation, except perhaps in Yale Law School Professor Bruce Ackerman's We the People series of books. (16) That is not surprising, because in the milieu of the legal academy, the need for such a defense would not normally be evident; the sanctity of the New Deal, and all that generated it, functions as a postulate of quasi religious significance. Nor do we think that good arguments for that choice are easily found. Indeed, if there was a worse time frame from which to begin constitutional reasoning, it does not leap to mind.

We then turn in Parts II and III to the proper object of constitutional interpretation, which is the actual Constitution. We conclude that certain features of the federal (17) administrative state--namely, massive subdelegations of legislative and judicial power to appointed technocrats who are not directly accountable to the President--are unconstitutional through numerous violations of the separation of powers, that they violate Magna Carta and the Due Process of Law Clause of the Fifth Amendment, and that they are bad ideas as a matter of policy; and we offer some quite modest suggestions that might incrementally help restore the Constitution and the rule-of-law tradition on which it is founded.

The gap between our...

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