Everything that's not forbidden is allowed

In a speech at the Federalist Society's annual dinner on Nov. 16, Justice Neil Gorsuch introduced a term previously unknown to most of the thousands in attendance: anti-administrativism. Gorsuch's speech was part of the focus on the administrative state at this year's Federalist Society National Lawyers Convention, which took place in mid-November in Washington, D.C.

Gorsuch did not coin this awkward term. It appears to have been coined by Columbia Law School Professor Gillian E. Metzger in her lengthy foreword to the November 2017 issue of the Harvard Law Review. The foreword, titled "1930s Redux: The Administrative State Under Siege," opines that the country is experiencing a repeat of the 1930s conservative reaction to the rise of federal agencies. She identifies Justice Gorsuch as a leading anti-administrativist.

Gorsuch expressed wonder at how openness to challenges to an agency's acting as prosecutor and judge or questioning why courts should be bound by agency interpretations of statutes would qualify someone as an enemy of government.

He also questioned the extent to which Congress can delegate wide powers to agencies, implying that there is some constitutional limit to the delegation of law-making powers. Before conservatives could celebrate the re-birth of the non-delegation doctrine, Gorsuch was careful to note that the more robust judicial scrutiny of administrative agencies he suggests would be worked out gradually. Gorsuch clearly believes closer scrutiny of the administrative state is overdue.

The Obama administration aggressively expanded agency power through questionable methods like the use of guidance letters to announce significant policy changes and through settlements of litigation with friendly activist groups that would sidestep normal notice-and-comment rule-making procedures.

While Professor Metzger is concerned about the administrative state being under siege, perhaps some concern for the regulated being under siege is not out of place, given that the Obama administration's agencies were far more aggressive than Roosevelt's post-1937 administrative practices.

Progressives have ambitions for agencies to have even greater power and discretion than they already hold. They see no problem with a government dominated by experts. Agencies, in this view, are where wise and informed people come together to make the world a better place.

The problem with this model is that it doesn't allow for much political input from voters or accountability to voters. Insulating administrative policy-making from politics is a bug for conservatives and a feature to progressives. And progressives want elected officials to have even less influence over policy-making.

Thus, unelected bureaucrats who are highly likely to believe that they and their agencies need to have a larger say in the affairs of the nation because they are experts and know better than those pesky voters and the politicians that they elect get power without accountability. The balance between policy-making being effective and informed by non-partisan expertise and policy-making being responsive to the will of the people needs to be reset.

The Consumer Financial Protection Bureau is the primary example of the ideal progressive agency. It was designed to be outside of Congress' power of the purse by having a separate funding stream from the Federal Reserve. On that basis alone, it is designed not to be responsive at all to the people's representatives in Congress.

Agency staffers seem to believe CFPB should be outside of executive control. Recently, when Director Richard Cordray resigned, a deputy director he appointed attempted to retain control of the agency as acting director. If successful, any delay in the appointment of a new director would leave this agency being run by ... itself. Relying on a questionable interpretation of the enabling statute, she even sought an injunction to prevent a presidential appointee from becoming acting director instead of her.

While that gambit failed, the direction of progressive governance is clear: permanent left-tilting agency staff and leadership; presidential political control minimized; congressional fiscal control neutered; expert discretion maximized; and court deference to the results. In short, agencies like CFPB, once created, would answer only to their own sense of the public good.

Administrative power and inertia thus thwart any rollback of progressive governance when progressives lose the presidency. Republican presidents since Reagan have not been able to change the overall direction of the federal government's becoming larger and more intrusive. Temporary delays in the accelerating pace of federal empowerment have been all that's been accomplished. Conservative legal academics have joined the search for how to limit the power of the administrative state.

In parallel to Justice Gorsuch's prominent role questioning administrative power from the bench, Professor Philip Hamburger of Columbia Law School is the chief academic skeptic of administrative power. He has written eloquently about the dangers of administrative power to civil liberties in his book "Is Administrative Law Unlawful?"

He has likened administrative power to the English royal prerogative. Long before the American revolution, English kings sought to create royal tribunals separate from courts and to have those tribunals adjudicate disputes or impose punishments against citizens. In the 17th century, the crown created the most famous royal tribunal, the Star Chamber.

Parliament insisted on due process of law to limit royal prerogative. The "process" in question was understood in the 17th and 18th centuries as adjudication before a court. The very notion of "due process" before anything other than a court of law was, and, to Hamburger, is, an oxymoron. Adjudication before an agency is, for Hamburger, a modern Star Chamber.

Speaking at the Federalist convention, Hamburger took aim at the whole idea that administrative due process is due process at all, let alone that it can be "all the process that is due." He argued that deference to agencies transforms courts from protectors of citizens' rights to enablers of agency tyranny.

Hamburger contended that Chevron deference should be called "Chevron bias," because courts' assuming facts based on an administrative record and deferring to an agency's interpretation of a statute is the equivalent of bias in favor of the more powerful party before the court. Hamburger forcefully argued that agency adjudications with only "administrative" due process cannot be conclusively binding on private parties under the Constitution. At a minimum, independent courts must take a fresh look before parties can be bound.

EPA Administrator Scott Pruitt also spoke at the convention about how his agency was answering past criticisms with new practices. Pruitt noted that regulatory uncertainty was bad for the regulated and bad for the environment. He mentioned how some toxic sites have no final cleanup plans after up to 27 years on the Superfund list, observing that no one benefits from delaying action on these cleanups.

Pruitt also stated that the EPA will no longer use settlements to impose new rules outside of normal notice and comment rulemaking under the Administrative Procedures Act.

Pruitt sees himself as administering statutes, not trying to expand their reach aggressively. His EPA will likely ease broad assertions of federal jurisdiction like the "Waters of the United States" rule that asserted jurisdiction over most seasonal ponds. Instead, the EPA will leave it to states to pursue their own environmental policies to supplement those where federal jurisdiction provides a regulatory floor. He reads the EPA's enabling statutes as requiring federal minimums, leaving it to states to decide whether they want additional regulations.

California environmentalists will be able to work with California state government on increased regulation if Californians want that. They'll have a harder time imposing their preferences on Alaska through the federal EPA.

Professor Gary Lawson of Boston University School of Law, referring to his own 1994 article "The Rise and Rise of the Administrative State," caught the mood of the convention when he wondered whether future generations would look back at the election of President Donald Trump and say, pace candidate Obama, "This was the moment when the rise of the administrative state began to slow and the Constitution began to heal."

Whether questioning the administrative state's constitutional legitimacy will end up changing anything is certainly an open question. Whether Professor Hamburger is correct that the administrative state is unconstitutional, or Professor Metzger is right and the same arguments made against the New Deal have returned for a brief and ineffective moment, will unfold in the Supreme Court, in Congress, in politics, and in the Columbia Law School faculty lounge, for years to come.

Will agencies be brought to heal by elected officials? Will courts provide a more effective check on agency power? Or will agencies become more powerful, more ambitious, and, like the CFPB, pursue complete independence from even executive oversight? The anti-administrativists, led by Justice Gorsuch and Professor Hamburger, are ready to argue their case.

"Everything that is not forbidden is allowed" is an old principle of English common law. Lawyers should consider whether that principle should apply to citizens, or to agencies.