Richard A. Epstein on the Expanding Authority of the Administrative State

How Bad Constitutional Law Leads to Bad Economic Regulations

For decades, conservative and libertarian judges and scholars—at times joined by some liberal thinkers—have taken the lead in criticizing the ever-expanding authority of the modern administrative state. These critics attack the power of the massive bureaucracy to write and enforce its own rules and regulations. They protest the enormous discretion that this power confers both on officials within the executive branch of government and on members of independent agencies. Much of the criticism is directed to the now foundational Supreme Court decisions of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which in 1984 codified a principle of deference to administrative agencies on questions of law, and National Cable & Telecommunications Association v. Brand X Internet Services, which in 2005 further expanded that deference to cases in which an agency has reversed its own established practices.

The administrative state, of course, is not unconstitutional in all its manifestations. The large and sophisticated corpus of 19th-century administrative law offers us a benchmark by which we can evaluate post–New Deal developments. The success of that body of law depended heavily on the limited mission that it was asked to discharge, given its deep respect for both the doctrine of federal enumerated powers and a relatively robust conception of property and contract rights. But the New Deal expansion of the constitutional order has failed, as I argue in my new book, The Dubious Morality of the Modern Administrative State. To understand the extent and character of that failure, look only to what administrative law now allows: excessive government discretion to implement vast statutory schemes, many of which impose overbroad controls in such critical areas as environmental, labor, and food and drug laws.

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