"The Checks & Balances of the Regulatory State" (2016) is an article by American lawyer and professor Paul R. Verkuil arguing that the administrative state (as he refers to it, the regulatory state) is involved in a system of checks and balances that prevents administrative abuses of power and violations of constitutional rights. Verkuil defends, in a general sense, the administrative powers exercised by the executive and independent agencies of the federal government. While not a direct response to their writings, this article addresses one of the key arguments made by critics of the administrative state such as Gary Lawson and Philip Hamburger.[1]
HIGHLIGHTS
Source: RealClearPolicy, October 25, 2016
Abstract: Verkuil's article defends the agencies of the administrative state, which he refers to as the regulatory state, from arguments made by some critics that the regulatory state is unconstitutional because it violates the separation of powers principle. Verkuil argues that the regulatory state does not violate the Constitution's separation of powers because it is involved in a system of checks and balances that prevents administrative abuses of power and violations of constitutional rights.
Author
Paul R. Verkuil
Paul R. Verkuil is an American lawyer, professor, and university administrator who served as chairman of the Administrative Conference of the United States from 2010 until 2015. Below is a summary of Verkuil's education and career:[2][3][4]
- Academic degrees:
- A.B. in English literature (1961), College of William and Mary, Williamsburg, Virginia
- J.D. (1967), University of Virginia School of Law, Charlottesville, Virginia
- M.A. in political science and economics (1971), The New School, New York City
- LL.M. (1969) and J.S.D. (1972), New York University School of Law, New York City
- Law professor and legal scholar
- Senior fellow, Center for American Progress
- 2010-2015: Chairman of the Administrative Conference of the United States
- Former dean of Tulane University Law School and the Benjamin N. Cardozo School of Law
- President emeritus of the College of William and Mary
- Former practicing attorney
Congressional checks and balances
Verkuil's article defends the administrative state, which he refers to as the regulatory state, from some of the criticisms advanced by authors such as Philip Hamburger and Gary Lawson. Verkuil argues that the regulatory state does not violate the Constitution's separation of powers (one of the arguments made by Hamburger and Lawson) because it is involved in a system of checks and balances that prevents administrative abuses of power and violations of constitutional rights.[1]
First, Verkuil argues that Congress checks the power of the regulatory state by passing organic and enabling statutes that establish the goals of and limits on agencies, determine agency funding levels, set procedural rules for agency action, and hold oversight hearings:
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The regulatory state is deeply misunderstood. No one denies the importance of federal agencies in formulating the rules that shape the modern economy and civil society. But the regulatory state is not, as its critics maintain, an illegitimate 'Fourth Branch' of government, operating on its own. It is, instead, a vital function of government, which is part of the executive branch (though not within the White House), and is subject to numerous constitutional checks and balances.
The most important of these checks and balances is that the regulatory state is an empty vessel until Congress acts to fill it. And Congress has done so since the Founding (think customs officials and military paymasters). Congress turns the spigot on or off based on legislation it wants to be implemented, and the federal agencies, such as the Securities and Exchange Commission, the Food and Drug Administration, and the Social Security Administration, respond (as the many thousands of Federal Register pages attest to).
Congress also provides procedural rules (such as the Administrative Procedure Act and the Freedom of Information Act) that control the agencies in dealings with regulated entities and the public. It also decides whether or not to grant agencies substantive rulemaking authority, which gives agencies legislative-like power.
But Congress is not done yet: It also holds oversight hearings (which can be terrifying experiences for agency heads), and can use its budgetary power explicitly to stop agency actions. Finally, Congress has created the civil service, which assures career and non-political management of much agency activity.[5]
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Judicial and executive checks and balances
Verkuil's article argues that despite various forms of deference (notably Chevron deference), the courts provide effective judicial review and oversight of agency action. Verkuil also argues that the president's powers to make political appointments and to review and coordinate regulatory activities provide executive checks on the powers of the regulatory state:
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The judicial and executive branches also place checks and balances on the regulatory state. The courts review agency actions to decide whether they are lawful (not 'arbitrary and capricious') and consistent with congressional dictates. This is also where the contested Chevron doctrine comes in. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. is a landmark case in which the Supreme Court held that federal agencies should be given 'administrative deference' (now sometimes called 'Chevron deference') in interpreting their statutes when congressional intent is ambiguous. The assumption the Court makes is that when the law is not clear, agencies, who are closest to the situation, should have the first shot at interpretation. My take on Chevron ... is that it honors the separation of powers by deferring to the two elected and political branches (Congress and the executive), rather than having the unelected judicial branch take the lead.
The executive branch also provides checks and balances over agencies under the Article II of the Constitution, according to which the president has the duty to see that laws are faithfully executed. One way this duty is manifested is by appointing (often with senate concurrence) agency leaders and, if necessary, removing them for performance failures.
Another way the president assures faithful execution of the laws is by reviewing significant agency rules for consistency with administration policy and for efficiency (e.g., costs and benefits). This function is performed by Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA), and its mission is sometimes controversial. Much of that controversy can be overcome if it is understood that the president is not, as a New York Times piece from last summer put it, the 'prolific author of major regulations,' but, instead, the coordinator of regulatory policy. Congress usually makes the agency heads the author of regulations by placing authority in them directly.[5]
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Suggested reforms to the regulatory state
Finally, Verkuil argues that the regulatory state ought to be reformed and improved, rather than limited, rolled back, or eliminated. In his article, he describes three categories of possible reforms, stating that "When [these] steps are taken, the regulatory state will work better, cost less, and might even be smaller:"
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1. It’s true that there are many inconsistent, outmoded, and burdensome rules. To combat this we should encourage agencies to do retrospective review of rules to see whether they should be modified, eliminated, or strengthened. ... Though some in Congress are considering giving the rule review task to a separate agency, the best way to go is to have OIRA, which knows about rules, do the job. OIRA will need people to do this, of course, in addition to the current staff of 45. A small investment here will have a big impact. And, since agency officials know best of all where the rule problems lie, federal agencies, themselves, should also be bolstered to perform the retro review function. That will mean more staffing for independent agencies, which are not subject to OIRA review.
2. We should also give the next president reorganization authority. Such authority was granted by Congress as a matter of course until the mid 1980s, but not since — despite the fact that President Obama had some good ideas about how to make agencies more effective by reorganizing them. If left uncoordinated, the regulatory state becomes too large and less effective. Here we should learn from the congressional Government Accountability Office, which has carefully studied reorganization.
3. Finally — my favorite — we should reform the civil service. Bipartisan legislation to fix the way we hire and fire civil servants is long overdue (the last effort was in 1978), and it will make a real difference to the way the regulatory state operates. Today, we have the same number of government employees President Kennedy had available over 50 years ago. Since then, the GDP has grown by more than five times and we have created many new agencies with broad missions (e.g., the Environmental Protection Agency and the Department of Homeland Security). Because we do not have sufficient numbers of civil servants, nor the right kind (e.g., technology experts), the regulatory state is increasingly run by contractors, who often cost more and perform inherently governmental decisional roles that jeopardize constitutional values. Contractors can do many things for government if they are properly supervised by responsible and motivated career and political officials — but these are in short supply.[5]
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See also
External links
- ↑ 1.0 1.1 RealClearPolicy, "The Checks & Balances of the Regulatory State," October 25, 2016
- ↑ Cardozo Law Review, "Biography: Paul R. Verkuil," 2010
- ↑ Center for American Progress, "Paul Verkuil," accessed December 11, 2017
- ↑ Administrative Conference of the United States, "Paul R. Verkuil," accessed December 11, 2017
- ↑ 5.0 5.1 5.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
