Reconsidering the Constitutional Limits of the Administrative State

(By Neomi Rao, Associate Professor of Law and Director of the Center for the Study of the Administrative State and Former Clerk for Justice Thomas)

In 2015, Justice Thomas wrote in a concurring opinion: “We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.” Department of Transportation v. Association of American Railroads.

Following his approach in other areas where he looks to the original meaning and structure of the Constitution, Justice Thomas has taken aim at the constitutionality of the administrative state. The administrative state refers to the executive agencies and bureaucracy that do most of the work of the federal government. It includes all of the federal agencies, entities like the Environmental Protection Agency, the Department of Energy, and the Federal Trade Commission, to name just a few. These agencies exercise tremendous power to make regulations, to enforce those regulations through prosecution and fines, and in some instances, even to adjudicate cases.

While much administration is lawful and constitutional, agencies sometimes exceed the power given to them by Congress and abuse their discretion to enforce the law—all with serious consequences for economic and personal liberty.

Justice Thomas has criticized the Supreme Court’s deferential approach to administrative agencies and argued that the courts should do more to ensure that administration stays within legal and constitutional limits. He has suggested rethinking two important doctrines to make administration more lawful and accountable.

First, Justice Thomas has called for a reconsideration of the non-delegation doctrine. Article I of the Constitution vests all legislative power in Congress and, as Justice Thomas has explained, there are “certain core functions that require the exercise of legislative power that only Congress can perform.” That is, Congress cannot delegate the core legislative power to administrative agencies. Yet the entire administrative state depends on Congress giving authority to agencies, which then essentially make the law.

The Supreme Court has allowed even the most open-ended delegations—including upholding an agency’s authority to regulate “in the public interest.” The Court currently looks only to see if Congress provides an “intelligible principle.” Justice Thomas, however, argues that this test does not adequately protect against delegation. He has argued that courts should maintain a real boundary between legislative and executive power, ensuring the people’s representatives in Congress exercise the core lawmaking power.

Second, Justice Thomas has called for rethinking the deference that courts give to an administrative agency’s interpretive rules. Currently, the Court will defer to an agency’s interpretation of its own rules. Justice Thomas, however, has argued in a concurring opinion that judicial deference to an agency’s interpretation “represents a transfer of judicial power to the Executive Branch, and it amounts to an erosion of the judicial obligation to serve as a ‘check’ on the political branches.” Perez v. Mortgage Bankers Association (2015). He explains that legally binding interpretations require independent judgment that must be exercised by the judiciary.

Thus, Justice Thomas has questioned administrative agencies making the law, which is a power for Congress, and interpreting the law, which is a power for the courts. In each of these decisions he seeks to maintain constitutional separation of powers and thereby prevent the accumulation of all three powers of the government in administrative agencies. As James Madison wrote in Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, … may justly be pronounced the very definition of tyranny.”

Restoring the constitutional limits on administration would restrain agencies from acting without lawful authority. Justice Thomas’ proposals for greater judicial review of administration could have far reaching consequences for the way the federal government exercises power.

–Neomi Rao is associate professor at the Antonin Scalia Law School at George Mason University, where she founded and directs the Center for the Study of the Administrative State.