The Supreme Court, earlier this week, announced its docket of upcoming cases. Among those to which it granted certiorari is Kisor v Wilkie, a “boring” case that could have massive implications for the administrative state. The case, about a Marine seeking retroactive benefits from the VA, rests on a series of precedents that, in essence, grant the administrative state the power to write, interpret, and execute regulations, especially when legislative direction can be deemed “vague.”
Here’s the logic. The administrative state resides within the Executive branch, and is thus headed up by the President. It’s the President’s job to see to the execution of the laws the Legislature (i.e. Congress) writes, and it’s the Court’s job to ensure that a – the execution of laws is faithful to the laws as written by the legislature, and b – that the laws, both in writing and execution, stay within the boundaries established by the Constitution. When a law is vague, the Court has ruled in the past that it should be up to the legislature to resolve the vagueness, since the legislature, by virtue of its electoral validation every couple years, is more accountable to the People than the courts’ unelected life-tenure judges are. By extension, and absent corrective action by the legislature, vagueness should be resolved within the Executive branch, since the President is also more accountable to the People than the courts are.
On its face, this presents as reasonable, and indeed, this is the basis for the Left’s hyperventilation (when is the Left not hyperventilating nowadays?) about how this case is the beginning of a massive power grab by the “Kavanaugh Court.” Funny that – it’s usually the chief justice (currently John Roberts) after whom the Court is nicknamed, but we all know the reason – the Left continues to treat Kavanaugh’s installation as illegitimate, just as they treat Trump’s election as illegitimate, no matter what the law says. This makes their appeal-to-precedent rather ironic, but irony is dead, so they can be forgiven.
The problem lies in the reality of the administrative state, as opposed to the idealized (and rather quaint) notion of accountability via the election of a President every four years.
Yes, indeed, each President installs a Cabinet that heads up the administrative state, and each Cabinet member installs his or her own staff. In other words, the top couple layers of management get swapped out fairly regularly. However, the executive branch employs over four million people. This means that the VAST majority of those in the administrative state persist across presidents and cabinets, and indeed across party changes in government. Such a massive army of people has its own inertia, and its own momentum, and its actions, policies, interpretations and regulatory writing carries on as it does no matter what happens at the top. And, indeed, we’ve seen ample evidence of resistance from the rank-and-file to changes that those at the top seek to make. This has been called the “deep state,” and anyone who believes in limited and/or accountable government should be deeply troubled by it. For one thing, it’s extremely difficult to fire a federal employee, and virtually impossible to do so for foot-dragging or other forms of intransigence regarding new directives and instructions from on high. For another, all these people are as human as you and I, and their own biases are inevitably going to emerge in the performance of their duties. And, since power corrupts, and the system’s designed to protect them from consequences, they have enormous latitude in what they do and how they do it.
This reality blows up the argument that the administrative state is subject to the judgment of the voters, and it thus washes out the foundation of the Court precedents that grant deference to that state when statutes are vague.
Electoral politics in America are a pendulum, with the parties trading control every few years. This tends to temper the parties’ excesses, but one thing tends to be pretty constant across the decades: the growth of the regulatory state. Indeed, one of Trump’s promises was that he’d attempt to tame the regulatory state and roll it back. He did a decent job of fulfilling that promise in 2017, given the hard realities of the aforementioned momentum and inertia, but the deep state understands the nature of siege warfare, and all it has to do is resist long enough for a change in the White House to happen to survive and outlast the “will of the people” that each election represents.
This is what makes Kisor such a big deal. Right now, precedent invests enormous power in the deep state by granting it deference whenever vagueness can be asserted (as it almost always can), and that power, at a granular level, is virtually unchallengeable except in rare cases when either publicity or a court pushes back. Courts are mostly defanged in that push-back via those precedents, but the Supreme Court has a chance to give the judicial branch back some ability to oversee the deep state’s activities.
While some will still argue that even the small amount of power the top layers of management have over the deep state represents more accountability than lifetime justices are subject to, the reality is that this is a different sort of separation-of-powers matter. Separation of powers grants writing, interpreting, and executing of laws to three distinct branches of government. The current state of law, however, grants the deep state all three of those powers when a law drafted by Congress is insufficiently specific, in the deep state’s opinion. It’s past time this metastasizing Kraken be reined in. As David French at the National Review observed, this case could “strike at the heart of the administrative state.”
Making a separation-of-powers argument to defend the consolidation of powers within an unaccountable bureaucracy is laughable on its face. And, yet, that’s exactly what I expect from those who only like checks against government excess when those checks can be applied by people of their own ideology. Too many see the problem in politics as “our government vs their government” rather than “more government” vs “less government.”
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