1/2 The Birth of the Deathless Administrative State. @RichardAEpstein

Oct 27, 2019, 02:10 AM
Image:  Ballotopedia’s graphic concerning the administrative state. See: https://ballotpedia.org/Administrative_state 
       The administrative state is a term used to describe the phenomenon of executive branch administrative agencies exercising the power to create, adjudicate, and enforce their own rules. Five pillars are key to understanding the main areas of debate about the nature and scope of administrative agency action: nondelegation, judicial deference, executive control of agencies, procedural rights, and agency dynamics
Richard A Epstein, Chicago Law, NYU Law, Hoover; writes on The Dubious Morality of the Modern Administrative State.  The Atlantic magazine. Who’s in charge? Who executes the Constitution?   Intervening bodies of experts . . . Driving force is change in substantive law.  Nineteenth Century: cottage industry; modest substantive program.  Rules of customary practice.
                  Twentieth Century: “Property doesn’t really matter” Virtually plenary power to regulate trade, mining agriculture – everything,  Can’t run this system with direct control; need to confer [ability] on a [specialized, appointed] crew.  An ambitious administrative state: huge grants of discretionary authority. Justice Felix Frankfurter, 1943 decision;  he believed that administrative decisions are better than market forces. FCC was originally part of Dept of Commerce; separated [and empowered] by Herbert Hoover. Radio and TV. NBC broken into blue and red networks. Govt almost always gets allocations wrong.
For nerds who happily pursue this sort of discussion to a fare-thee-well, two definitions come to mind:
       A.   . . . Marini writes that “constitutionalism as a theoretical doctrine is no longer meaningful in our politic.  . . . When the principles that establish the legitimacy of the Constitution are understood to be changeable, are forgotten, or are denied, the Constitution can no longer impose limits on the power of government.”
       B.   . . . Last week, the Supreme Court heard arguments in Kisor v. Wilkie, a case that began as a run-of-the-mill dispute between James Kisor, a Vietnam veteran, and the Department of Veterans Affairs over disability benefits but is now seen as a bellwether of the Court’s willingness to rein in the administrative state. A growing chorus of liberal professors and politicians are warning of dire consequences if the Court rules in favor of Kisor because doing so would require the Court to abandon its longstanding practice of deferring to administrative agencies’ interpretations of their own ambiguous rules—a doctrine known as “Auer deference,” after a 1997 Supreme Court decision. Columbia University law professor Gillian Metzger warns that overturning Auer “would call into question the core legal foundations of the administrative state.” It is true that Kisor may spell the end of Auer deference—but that’s a reason to cheer, not mourn.