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The Attack on Administrative Regulation

The Attack on Administrative Regulation

William Funk

Probably since the first instance in which Congress considered giving a federal agency the authority to regulate private conduct, those subject to regulation have attempted to avoid such regulation. One objection has been that the subject should not be regulated—regulation kills jobs, investment, innovation, etc.[1] A less direct attempt has been to impose procedural requirements on adopting any regulation or order; such procedures would slow the adoption of a regulation or order and perhaps, by raising the cost of adopting it, dissuade the agency from proceeding altogether.[2] The origins of the Administrative Procedure Act reflect this approach,[3] and current proposals to increase the procedural requirements for rulemaking continue this strategy.[4] Few, however, have attacked the legitimacy of administrative regulation altogether.

Although the Supreme Court’s use of the Nondelegation Doctrine in A. L. A. Schechter Poultry Corp. v. United States [5] and Panama Refining Co. v. Ryan [6] was a temporary attack, in that those opinions undermined the ability to delegate regulatory responsibilities to agencies, the opinions were limited and were subsequently interpreted in a way that effectively allows very broad delegations.[7] More recently, however, there has been a concerted effort arising in the academy, Congress, and the courts to undermine agency regulation as fundamentally illegitimate—if not unconstitutional.[8] Whether this effort will ultimately prevail is questionable, but this new and expanding attack deserves recognition.

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[1] President Trump Eliminates Job-Killing Regulations, WHITE HOUSE (Mar. 30, 2017), https://www.whitehouse.gov/blog/2017/03/30/president-trump-eliminates-job-killing-regulations.

[2] See infra Part IV (discussing a series of Executive Orders limiting administrative power).

[3] See, e.g., George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557, 1678 (1996) (stating that the APA was “a compromise of a battle over conservatives’ attempts to hinder liberal administration programs by limiting the power of agencies to implement the programs”).

[4] See, e.g., The Regulatory Accountability Act, S. 951, 115th Cong. (2017) (calling for reform of federal rulemaking processes).

[5] A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 518 (1935).

[6] Panama Ref. Co. v. Ryan, 293 U.S. 388, 432 (1935).

[7] See, e.g., Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474 (2001) (acknowledging the Court is loath to second guess Congress on how much authority it delegates to agencies).

[8] See Cary Coglianese & Kristin Firth, Separation of Powers Legitimacy: An Empirical Inquiry into Norms About Executive Power, 164 U. PA. L. REV. 1869, 1871–72 (2016) (identifying issues arising within interbranch relations with which academics and courts grapple).

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