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"1930s Redux: The Administrative State Under Siege" by Gillian E. Metzger (2017)

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"1930s Redux: The Administrative State Under Siege" (2017) is an article by American legal scholar Gillian E. Metzger that draws parallels between what Metzger describes as contemporary anti-administrativism and previous challenges to the growth of administrative agencies during the 1930s. Metzger identifies what she considers to be current attacks on the administrative state in judicial and academic discourse. She compares the current arguments concerning the constitutionality of the administrative state to similar arguments put forth during the 1930s. Metzger defends the administrative state as constitutionally obligatory by arguing that the combination of functions within agencies and judicial deference regimes result from complex delegations of authority.[1]

HIGHLIGHTS
  • Source: Harvard Law Review
  • Abstract: Metzger provides the following summary of her argument:


    "[A]nti-administrativism misdiagnoses the administrative state’s constitutional status. Anti-administrativists paint the administrative state as fundamentally at odds with the Constitution’s separation of powers system, combining together in agencies the legislative, executive, and judicial authorities that the Constitution vests in different branches and producing unaccountable and aggrandized power in the process. In fact, however, the administrative state is essential for actualizing constitutional separation of powers today, serving both to constrain executive power and to mitigate the dangers of presidential unilateralism while also enabling effective governance. Far from being constitutionally suspect, the administrative state thus yields important constitutional benefits. Anti-administrativists fail to recognize that the key administrative state features that they condemn, such as bureaucracy with its internal oversight mechanisms and expert civil service, are essential for the accountable, constrained, and effective exercise of executive power."[1]

    • Author

    Gillian E. Metzger

    Gillian E. Metzger is an American legal scholar. She joined the Columbia Law School faculty in 2001 and was named the Stanley H. Fuld Professor of Law in 2011. Prior to joining the Columbia Law School faculty, Metzger worked as a staff attorney for the Brennan Center for Justice at New York University School of Law and as a visiting professor at Harvard Law School. She previously served as a law clerk for United States Supreme Court Justice Ruth Bader Ginsburg and Judge Patricia M. Wald of the United States Court of Appeals for the District of Columbia Circuit. Her areas of expertise include constitutional law, administrative law, federal courts, federalism, and privatization, according to her profile at Columbia Law School.[2]

    Below is a summary of Metzger's education and career:

    • Academic degrees
    • 2001 - Present: Professor, Columbia Law School
    • Spring 2011: Visiting professor, Harvard Law School
    • 1998-2001: Staff attorney, Brennan Center for Justice

    Contemporary attacks on the administrative state

    Metzger opens the paper by describing what she considers to be current attacks on the administrative state. She claims that the current attacks are significant because they are featured in judicial discourse and frame the administrative state as unconstitutional. The argument that the administrative state is unconstitutional, Metzger claims, has not been as prominent since the 1930s:

    “ The striking feature of the current challenges, however, is the extent to which they are surfacing in court and being framed in terms of constitutional doctrine. The problems these attacks identify with the administrative state are not simply the policies it advances, its role as the engine for social regulation, or its domination by progressive bureaucrats. More than this, the national administrative state is attacked as fundamentally unconstitutional. While still a minority position, this view is gaining more judicial and academic traction than at any point since the 1930s.[3] ”

    Metzger identifies current federal legislative efforts to check the scope and authority of the administrative state, such as the Regulatory Accountability Act (RAA) and the REINS Act. She also discusses what she considers to be the unsuccessful regulatory reform efforts of past presidential administrations, including Ronald Reagan, George W. Bush, and Bill Clinton. Metzger draws the conclusion that the administrative state must exist today and that the appropriate discourse should concern its size and scope rather than its constitutionality.

    Metzger continues by identifying what she considers to be two current attacks on the administrative state: the judicial attack and the academic attack.

    Judicial attack

    Metzger divides the current judicial attack on the administrative state into the following three categories:

    • Separation of powers challenges: Metzger describes separation of powers challenges to the administrative state as arguments concerning the scope of the president's removal powers, claims that administrative adjudication violates jury and due process rights, and concerns that delegations to agencies "make lawmaking too easy and threaten individual liberty."
    • Subconstitutional challenges with a separation of powers background: Metzger describes this category of challenges as attempts to overturn deference regimes.
    • Other constitutional claims: This category questions the administrative state in terms of its relationship to the First Amendment, specifically in terms of free speech and the free exercise of religion, and its role with respect to federalism.

    Academic attack

    Metzger claims that current academic attacks on the administrative state parallel the judicial attacks and that the two work to reinforce one another. She further argues that the growth in contemporary anti-administrative scholarship is a response to the growth in executive power during the Obama administration:

    “ The recent spurt of anti-administrative scholarship is in part a response to the Obama Administration’s expansive use of executive power in a progressive and proregulatory direction. But these academic moves reflect a longer-term and more lasting development. They are part of a wider and decades-old effort to reset constitutional law in a conservative and libertarian direction, reflected in the work of conservative legal groups like the Federalist Society and the Institute for Justice. As that suggests, there is a mutually reinforcing relationship between judicial and academic attacks on the administrative state.[3] ”

    Contemporary anti-administrativism

    Metzger identifies the following three core themes underlying what she describes as contemporary anti-administrativism:

    • Rhetorical anti-administrativism: This core theme is characterized by a "rhetorical antipathy to administrative government." She attributes this practice to the Supreme Court's rhetoric regarding the separation of powers and adminisitrative law. She claims that rhetorical anti-administrativism focuses on concerns that executive power is both unaccountable and aggrandized.
    • The judicial turn: This theme aims to address the concerns that executive power is both unaccountable and aggrandized by advocating for a greater role for the Article III courts.
    • Constitutionalism and originalism: The final theme is demonstrated by "anti-administrativism’s heavy constitutional flavor, particularly in its judicial and academic varieties. Often—though not always—this constitutional dimension is marked by originalism."

    Does contemporary anti-administrativism matter?

    Metzger closes the first part of the paper by questioning the significance of contemporary anti-administrativism. She claims that current legislative efforts, such as the RAA and the REINS Act, in addition President Donald Trump's (R) deregulatory executive orders could ultimately curb the rulemaking authority of the administrative state. However, she claims that "the judicial bark has been fiercer than its bite" and that the Supreme Court is not likely to take any meaningful anti-administrative actions. She further characterizes the Supreme Court's stance as a "resistance to innovative administrative structures and regulatory regimes."

    1930s Redux I: Twentieth-century conservative resistance to administrative government

    Metzger pivots from a discussion of current attacks on the administrative state to an examination of what she considers to be parallel constitutional resistance to the administrative state that occurred during the 1930s in the context of the New Deal:

    “ Building out the national state was a constant and contested process from the Founding through the nineteenth century. The period of greatest relevance to contemporary anti-administrativism, however, is the 1930s. It was in the Progressive Era at the end of the nineteenth century and the early decades of the twentieth that national administrative government truly blossomed. And it was in the 1930s, in business and legal resistance to the New Deal and FDR, that an existential battle over the national administrative state was last fought. In the years since, the national government has expanded and gained significant new powers and responsibilities. Nonetheless, that 1930s battle bears striking parallels to the current attack and represents an important backdrop against which to assess contemporary anti-administrativism.[3] ”

    Metzger identifies two organizations during the 1930s that attacked the administrative state on constitutional grounds: The Liberty League and the American Bar Association's (ABA) Special Committee. These groups characterized the administrative state as unconstitutional and voiced concerns over the separation of powers and due process rights. Despite the efforts of the groups, Metzger argues that they were ultimately unsuccessful and did not prevent the period of administrative entrenchment that proceeded through the 1940s.

    Metzer offers what she considers to be contemporary lessons drawn from the anti-administrativism of the 1930s:

    “ Despite these changes, the history of the League and the Special Committee offers an instructive parallel for understanding and assessing contemporary anti-administrativism. The 1930s represent the first and the last time that the national administrative government was subject to the type of sustained constitutional challenge that we are seeing today. Strikingly, many of the current constitutional attacks are made in terms nearly identical to those used by the League, and the League’s anti-administrative rhetoric rivals that of some members of the Roberts Court. ... Recognizing contemporary anti-administrativism’s connections to the failed challenges of the 1930s thus reinforces its radical potential; if accepted, its claims would require a reformation of the constitutional order that has governed for the last eighty years.[3] ”

    1930s Redux II: The administrative state and executive power

    The paper's final section examines contemporary and historical arguments concerning the constitutional functions of the administrative state with a focus on executive power:

    “ The 1930s are again a useful starting point for assessing the relationship between the administrative state and executive power. Two prominent accounts of this relationship — one arguing for strong presidential control of administrative government, the other emphasizing administrative expertise and specialization — were offered in 1937 and 1938, respectively. Although competing in important ways, these two accounts shared a central insight: that the administrative state was the key to ensuring accountable as well as effective exercise of executive power and guarding against its abuse. More importantly, both these accounts remain relevant today, with their combined insights capturing important constitutional functions that the administrative state performs.[3] ”

    Metzger argues that executive power allows presidents to oversee administrative agencies and set a national policy agenda. She also claims that presidents continually exercise this power, regardless of whether it is used to foster or curb administrative growth.

    The administrative state’s constitutional functions

    Metzger examines the constitutional functions of the administrative state and claims that its structural features and accountability mechanisms, which she identifies as "presidential control, bureaucratic oversight, expertise, professionalism, structural insulation, procedural requirements, and the like," work to ensure the accountable and efficient exercise of executive power. She further claims that the administrative state works to protect the separation of powers:

    “ These features of the administrative state are not just beneficial in a good government sense. They also carry constitutional significance, both in satisfying constitutional structural requirements and in ensuring that broader separation of powers principles retain force in the world of contemporary governance. By thus implementing the separation of powers, the administrative state performs an essential constitutional

    function.[3]

    		”

    Effective governance

    Metzger argues that the administrative state also allows for effective governance by providing solutions to complex regulatory issues:

    “ The administrative state does more than oversee and constrain. It also empowers and provides the means for effective governance. As eloquently propounded by Landis, the administrative state brings expertise, specialization, and information to bear on complicated policy and regulatory challenges, and does so in a way that allows for public participation and proactive government action. In particular, Landis emphasized that the combination of legislative, adjudicatory, and executive functions in agencies is essential for effective regulation. Similar consequentialist arguments remain at the forefront of contemporary defenses of the administrative state. This is not to say that administrative government always or necessarily regulates well; regulatory failures and phenomena like agency capture make any such claim implausible. The point is instead a comparative one. Neither legislatures nor courts have the kind of expertise and institutional capacity that agencies do, or the ability to adapt policy at the pace demanded by contemporary society, across the vast range of contexts in which administrative government is active.[3] ”

    The administrative state as constitutionally obligatory

    Metzger further contends that the administrative state is constitutionally obligatory in light of contemporary delegations of authority to administrative agencies:

    “ Put differently, the modern national administrative state is the constitutionally mandated consequence of delegation. To see why, begin with the Constitution’s requirement that the President shall “take Care that the Laws be faithfully executed.” It follows that the administrative capacity the President needs in order to satisfy the take care duty is also required. So far, few would disagree. What does that administrative

    capacity entail in the context of broad delegations? For starters, it means sufficient bureaucratic apparatus and supervisory mechanisms to adequately oversee execution of these delegated powers. It also requires sufficient administrative resources and personnel, in particular adequate executive branch expertise and specialization, to be able to faithfully execute these delegated responsibilities in contexts of tremendous uncertainty and complexity. Arguably, this means that professional and expert government employees are now constitutionally required as well, and perhaps also the civil service, insofar as such career staff are necessary to ensure expertise and institutional stability in agencies.[3]

    		”

    Delegation and current anti-administrative challenges

    Metzger claims that current anti-administrative challenges concerning the combination of agency functions and the separation of powers are drawn from the practice of delegation. She argues that the combination of executive, legislative, and judicial functions within administrative agencies is the direct consequence of delegations of authority that require agencies to execute a variety of responsibilities. It follows, according to Metzger, that "judicial deference can be viewed as simply an acknowledgement of the scope of authority delegated to the executive branch."

    See also

    Full text

    Footnotes

    1. ↑ 1.0 1.1 Harvard Law Review, "1930S REDUX: THE ADMINISTRATIVE STATE UNDER SIEGE " November 2017
    2. ↑ Columbia Law School, "Gillian Metzger," accessed June 16, 2018
    3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 3.7 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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