Taming the Monster

In 2017, Steve Bannon announced that the Trump Administration would seek “the deconstruction of the administrative state.” Since then, the U.S. Supreme Court—now with three Justices nominated by President Trump—has revisited how courts review the work of agencies, as well as the relationship between the President and those agencies. Many wonder where all of this is headed. In fact, we sometimes hear criticisms such as the following, which ran in Slate a couple of years back: “Do you think that securities fraud, consumer scams, environmental crimes, labor violations, and a ton of other misdeeds should be efficiently and consistently penalized? Then you are out of luck[.]” 

What is happening is complicated. True, the Supreme Court has issued significant decisions, but not nearly as significant as some wish or others fear. Close review reveals that the administrative state is being tamed, not destroyed. Nor is this new; time and again in our nation’s history, as the federal government changes, so do judicial doctrines.

Administrative law has always been a work in progress. Because the federal government has grown enormously powerful over the past two centuries, the Supreme Court has taken steps to ensure that federal agencies stay within constitutional and statutory bounds. 

On one hand, even a glance at the Constitution shows it is not easy to make law. Not only must Congress operate within enumerated powers, but federal lawmaking requires both houses of Congress—with members from far-flung places who are selected at different times and through different means—to agree, and generally for the President to agree, too. This effectively creates a supermajority requirement.

“No one should be startled that today’s politics can’t always be poured into old laws.”

On the other hand, the Constitution also empowers Congress to create “department[s]” to assist the President (in whom all “executive Power” is vested). Since 1789, Congress has created agencies to serve important functions.  

During the New Deal, scholars like James Landis—dean of Harvard Law School, chair of the Securities and Exchange Commission, presidential advisor, and an intellectual father of the administrative state—argued that expert agencies confronting modern problems need robust authority and that traditional separation-of-powers notions should fall away. Yet as then-Professor Elena Kagan later observed, “[w]hereas the questions of what and how to regulate seemed to Landis matters of fact and science, they appeared to his detractors, ever more numerous as time passed, to involve value choices and political judgment, thus throwing into question the legitimacy of bureaucratic power.” The result of this conflict of visions—some wanting fewer restrictions on what agencies do, others wanting more—was the grand compromise of the 1940s: federal agencies largely retained broad power, but Congress imposed more procedural requirements through the Administrative Procedure Act.  

The fight driving the 1940s compromise has not gone away and probably never will. Federal agencies do many good things. But power corrupts, and if agencies are not kept accountable, their very “expertise, the strength of modern government”—quoting Burlington Truck Lines v. United States, a Supreme Court case from 1962—may “become a monster which rules with no practical limits on its discretion.” 

One of the defining characteristics of government today is that presidents use regulatory power for political ends. This cuts across party lines and creates zigzagging national policy that makes longterm investment difficult and exacerbates political tensions. Candidates for the White House make big promises that Congress, often sharply divided, rejects. Rather than accepting defeat, the Executive Branch sometimes seeks to repurpose old statutes.  For example, President Biden—just weeks after Congress refused to enact a $15 minimum wage—used a 1949 statute enacted to streamline procurement to impose that very wage requirement on government contractors. Upon retaking office, President Trump rescinded Biden’s executive order with one of his own. The already extraordinary stakes of presidential elections become even greater when major policies change depending on who wins the race for the White House.

Today’s Court has a different view, reasoning that the President should control his own branch.

Nor is President Biden’s experience an outlier. After Congress switched parties in 2014, for example, President Obama used regulatory power in what the Washington Post contemporaneously described as “an executive style of governing that aims to sidestep Congress more often,” especially for immigration and environmental law. For his part, President George W. Bush tried to use regulation to ban physician-assisted suicide. Many of President Trump’s critics accuse him of acting similarly. Of course, not every use of old statutes is unlawful (unsurprisingly, statutory interpre­tation can be hard), but no one should be startled that today’s politics can’t always be poured into old laws.

It is against this backdrop that the Court was acting in Loper Bright Enterprises v. Raimondo (2024) when it tossed aside Chevron deference, the doctrine under which courts (sometimes) deferred to agency interpretations of ambiguous statutes rather than reach their own independent judgments of what the law means. 

Loper Bright has prompted much teeth-gnashing, but it shouldn’t. A survey of federal judges published in 2018 concluded that most were “not fans of Chevron” and “[t]he judges expressing skepticism regarding Chevron divide equally among liberals and conservatives.” Furthermore, Loper Bright does not shut down regulation. Instead, agencies will have to hew more closely to the words enacted by Congress, thus reducing their ability to fish around for ambiguities in old laws to pursue policies that Congress has not authorized.

Another line of cases empowers the President to fire heads of so-called “independent” agencies, i.e., Executive Branch agencies that by statute are independent of the President. The Court was initially skeptical of such independence, but beginning in 1935 reversed course—thus enabling what some call the “headless fourth branch of government.” Today’s Court has a different view, reasoning that the President should control his own branch.

In 2020, the Supreme Court appointed me to defend the constitutionality of an independent agency (the Federal Housing Finance Agency) after the Department of Justice refused to do so. I did my best to fulfill the assignment, but it is plain that the Court now rejects that agencies can exercise power without even the President being able to control it. As the Court sees it, meaningful presidential control is a liberty-protecting check on unelected agency officials. Soon after that decision, President Biden fired the head of the Social Security Administration because he wanted his own appointee to run the agency.

Finally, the Court is pushing back against allowing federal agencies, acting through their own in-house administrative processes, to decide whether regulated parties have violated the law. This is an important change, but only for situations analogous to those that historically would have required a jury trial. Suffice it to say, that is only some agency proceedings. Regardless, regulators can still enforce the law—they just need to present their case to a jury. It is hard to get too upset over jury-trial rights. 

So where does that leave us? Not only are we nowhere near the destruction of the administrative state, but we’re moving towards a long-overdue rebalancing. Today’s Supreme Court is taking steps to ensure that agency expertise does not become the “monster” that the Court warned about more than half a century ago. 

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This essay builds on Professor Nielson’s article, “Deconstruction (Not Destruction),” published in 2021 by Dædalus, the journal of the American Academy of Arts & Sciences.