Press

RELEASE: Judicial Fortitude: The Last Chance to Rein in the Administrative State

By

October 16, 2018

FOR IMMEDIATE RELEASE: Washington, D.C. (October 16, 2018) — In a new book, Judicial Fortitude: The Last Chance to Rein in the Administrative State (Encounter Books, October 16, 2018), Senior Fellow and Arthur F. Burns Fellow in Financial Policy Studies Peter Wallison argues that the administrative agencies of the executive branch are gradually taking over the legislative role of Congress. He says that “we risk losing our democracy unless we can gain control of the agencies of the administrative state. Rulemaking by unelected officials, with little congressional or judicial oversight, affects the lives of Americans in profound ways, but we have failed thus far to develop an effective strategy for controlling it.”

THE PROBLEM:

  • Congress has not been able to place limits on the growth of administrative power, and the courts have made the problem worse by requiring—in the 1984 decision Chevron v. NRDC—that lower courts defer to agencies’ interpretations of their own statutory authorities.
  • Courts are failing to carry out their primary constitutional responsibility: enforcing the constitutional separation of powers by ensuring that the elected branches of government—the legislative and the executive—remain independent and separate from one another.

THE CONSEQUENCES:

  • The consequences have been grave: unnecessary regulation has imposed major costs on the U.S. economy, the constitutional separation of powers has been compromised, and unabated agency rulemaking has created a significant threat that Americans will one day question the legitimacy of their own government, which is now increasingly outside the control of the American people.

THE SOLUTION:

  • There are some indications today that a majority of the Supreme Court may be willing to modify Chevron, and resume its role as “guardian of the Constitution” by effectively policing the separation of powers. This would allow the American people to regain some effective control over how the laws we live under are actually created.