One of the principal authors of the Constitution famously wrote that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47 (J. Madison). Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.
The administrative state “wields vast power and touches almost every aspect of daily life.” The Framers could hardly have envisioned today’s “vast and varied federal bureaucracy” and the authority administrative agencies now hold over our economic, social, and political activities. “[T]he administrative state with its reams of regulations would leave them rubbing their eyes.” And the federal bureaucracy continues to grow; in the last 15 years, Congress has launched more than 50 new agencies..
Although the Constitution empowers the President to keep federal officers accountable, administrative agencies enjoy in practice a significant degree of independence. As scholars have noted, “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” “[T]he president may not have the time or willingness to review [agency] decisions.” President Truman colorfully described his power over the administrative state by complaining, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.” President Kennedy once told a constituent, “I agree with you, but I don’t know if the government will.” The collection of agencies housed outside the traditional executive departments, including the Federal Communications Commission, is routinely described as the “headless fourth branch of government,” reflecting not only the scope of their authority but their practical independence.
As for judicial oversight, agencies enjoy broad power to construe statutory provisions over which they have been given interpretive authority. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., we established a test for reviewing “an agency’s construction of the statute which it administers.” If Congress has “directly spoken to the precise question at issue,” we said, “that is the end of the matter.” A contrary agency interpretation must give way. But if Congress has not expressed a specific intent, a court is bound to defer to any “permissible construction of the statute,” even if that is not “the reading the court would have reached if the question initially had arisen in a judicial proceeding.”
When it applies, Chevron is a powerful weapon in an agency’s regulatory arsenal. Congressional delegations to agencies are often ambiguous — expressing “a mood rather than a message.” By design or default, Congress often fails to speak to “the precise question” before an agency. In the absence of such an answer, an agency’s interpretation has the full force and effect of law, unless it “exceeds the bounds of the permissible.“
It would be a bit much to describe the result as “the very definition of tyranny,” but the danger posed by the growing power of the administrative state cannot be dismissed. [For examples:] the FCC “has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends”; [and the EPA] argument that would “enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”
What the Court says in footnote 4 of its opinion is good, and true (except of course for the “dissent overstates” part). [See the Majority’s Footnote 4 below.] The Framers did divide governmental power in the manner the Court describes, for the purpose of safeguarding liberty. And yet . . . the citizen confronting thousands of pages of regulations “promulgated by an agency directed by Congress to regulate, say, ‘in the public interest'” can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight “a critical part of the constitutional plan” is always an effective safeguard against agency overreaching.
It is against this background that we consider whether the authority of administrative agencies should be augmented even further, to include not only broad power to give definitive answers to questions left to them by Congress, but also the same power to decide when Congress has given them that power.
C.J. Roberts dissenting, City of Arlington v. FCC, 569 U.S. 290, 312-15 (2013), internal citations omitted.
Majority’s Footnote 4 (J. Scalia writing):
The Chief Justices discomfort with the growth of agency power is perhaps understandable. But the dissent overstates when it claims that agencies exercise “legislative power” and “judicial power.” The former is vested exclusively in Congress, U.S. Const., Art. I, §1, the latter in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1. Agencies make rules (“Private cattle may be grazed on public lands X, Y, and Z subject to certain conditions”) and conduct adjudications (“This rancher’s grazing permit is revoked for violation of the conditions”) and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises “indeed, under our constitutional structure they must be exercises of” the “executive Power.” Art. II, §1, cl. 1.
J. Scalia, City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013).
Leave a Reply