When I began this blog in 2012, one of the things I had been pondering for years was the extent to which much to most of the operation of the U.S. federal government ran directly counter to the Constitution. Every federal officer, on taking office, swore to uphold the Constitution; and then from day one proceeded to ignore it completely. Good friends of mine would go into jobs where everything they and everyone around them did was obviously unconstitutional, and yet nobody would so much as mention the issue. It was taboo -- like in The Emperor's New Clothes. Without going into detail, the three biggest issues then and now were (1) the combining of powers into agencies that would enact, and also enforce, and also adjudicate regulations (directly contrary to the Constitution's separation of powers into three branches of government); (2) agencies enacting regulations with the force of law on their own say so (contrary to the Constitution's requirement that all laws be passed by both houses of Congress and presented to the President for signature); and (3) many agencies claiming to be "independent" of the President (contrary to the Constitution's vesting all "executive power" in the President).
I'm not saying I'm the only one who had noticed these things at the time, and I should definitely mention Justice Clarence Thomas of the Supreme Court and Professor Gary Lawson of BU Law School as examples of canaries in the coal mine. But very, very few were paying attention, and certainly nobody in the Obama administration. Left-leaning law professors had nothing but scorn for anyone daring to raise these issues, certainly including Clarence Thomas.
I trace the beginning of a shift to the publication in 2014 of the book "Is Administrative Law Unlawful?" by Philip Hamburger, Professor at Columbia Law School. That was just over three years ago. Hamburger raised all of the three issues I identify above, and plenty more, and pulled no punches in characterizing these things as unconstitutional and illegitimate. Hamburger's book started to get some buzz in esoteric legal circles, but not much outside.
On March 9, 2015, two cases came down from the Supreme Court that contained significant concurring opinions raising these same issues from Justices Alito and Thomas. I covered those opinions in a post on March 25, 2015. Most significant was the Thomas concurrence in the case called Association of American Railoads, which included the following passage:
We have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body . . . but it has become increasingly clear to me that the test we have applied to distinguish legislative from executive power largely abdicates our duty to enforce that prohibition. . . . I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.
Uh oh. Right about the same time, progressive icon Professor Larry Tribe of Harvard Law School filed a comment on behalf of none other than Peabody Coal opposing EPA's Clean Power Plan on grounds that it violated the so-called and never-enforced "non-delegation doctrine." Now, this was a serious apostasy. It's one thing if a few conservative kooks spout crazy theories, but progressive icons must not step out of line. The forces of orthodoxy enforcement promptly swung into action. On March 26, 2015, an op-ed appeared in the New York Times by then recent ex-Dean of NYU Law Ricky Revesz, announcing that he and Tribe's Harvard colleagues Jody Freeman and Richard Lazarus had determined that "no one would take [these arguments] seriously" except for their association with Tribe's name. In other words, shut up Tribe, if you ever again want to be invited to the right cocktail parties.
Which brings me up to the present. For the past three days I have been attending the annual convention of the Federalist Society in Washington, which is just now wrapping up. The theme of the convention has been "Administrative Agencies and the Regulatory State." I hate to break it to Revesz, Freeman, et al., but suddenly lots of people are taking these issues very seriously indeed.
On Thursday night they had the big annual dinner. The speaker was new Justice Neil Gorsuch. About 2200 people were in attendance. Gorsuch talked about the just-published 2017 Supreme Court Foreword from the Harvard Law Review. He said that the article had coined a new and rather awkward term, "anti-administrativist," to describe the growing movement of those who think that much about the modern administrative state is unconstitutional. It was clear that Gorsuch was happy to include himself in the category.
Many readers who don't follow constitutional law closely may not understand the significance of the annual Harvard Law Review Supreme Court Foreword. It is undoubtedly the premier annual law review article. The Who's Who of the law professoriate compete to get their articles into this spot. All the Con Law profs read it. It generally runs around 100 pages, and this year's is no exception. The author is Gillian Metzger of Columbia Law School. And the title is "The Administrative State Under Siege."
So, in the course of less than three years, the official position of the cognoscenti has gone from "no one will take this seriously" to "the Administrative State is under siege." That was rather quick!
Metzger's 100 page article is way too long to quote here. Suffice it to say that the gist of the article is that having the agencies adopt and also enforce and also adjudicate regulations just has to be constitutional because it's necessary, and the government is just too big and its meddling in our lives is too important to do this any other way. If Professor Metzger had read her colleague Hamburger's book, she would know that these arguments were well-known to our framers and were explicitly rejected. In any event, this massive article is a far cry from the condescending dismissal of the Thomas/Hamburger position that was tried in 2015. They are now putting on the full court defense.
On Friday afternoon at the convention, the big speech was by Don McGahn, the new White House counsel. McGahn is the main legal advisor to the President, and also leads the forces looking for judicial nominees for President Trump. Here is a line I wrote down from McGahn's speech: "Justice Thomas's opinions [on the constitutionality of the administrative state in cases including Association of American Railroads] are the driving intellectual force of the Trump administration." He discussed a long list of Thomas opinions - concurrences and dissents - where Thomas has laid out in great detail his reasoning on the unconstitutionality of the main aspects of the administrative state.
On Saturday afternoon there was a big panel that featured both Lawson and Hamburger, going through their arguments in detail. There was no appearance from Justice Thomas this year, but his intellectual contributions permeated the conference.
Just three years ago the progressive legal elite thought that anti-constitutional governance by unaccountable bureaucrats (themselves) was secure for the long term, and that powerful counter arguments of the black justice could be condescendingly dismissed as things that "no one would take seriously." Now suddenly they are taking this very seriously. They are right to.