Liberty, Prudence, Imperfection, and Law

“The Problem with Tinkering: Why Administrative Law ‘Reform’ Is a Bad Idea,” By Bruce Frohnen

“Us Capitol in Daylight” by Kevin McCoy.

H.R. 185, the Regulatory Accountability Act of 2015, will not become law. In the unlikely event this bill passes the House of Representatives, it will not win majority support in the Senate, let alone enough votes to override President Obama’s inevitable veto. On the surface this may seem like a bad thing for those of us committed to limited government and the rule of law. The bill seeks to reign in arbitrary executive branch rulemaking by instituting scores of new procedural and analytical requirements to the process. It would reverse courts’ current, unjustified presumption of constitutionality and deference toward administrative interpretations and determinations. It also would expand notice periods and allow citizens to demand more formal procedures for the adoption of many rules. But it is just as well the bill is a dead letter.

Why? How could restrictions on administrative rulemaking be a bad thing, given the width, breadth, cost, and sheer audacity of so much regulatory quasi-law under which we currently must live and do business? Part of the answer lies in the logic and power of executive agencies. A draft of one letter opposing the bill, to be submitted by numerous teachers of administrative law, claimed that the Regulatory Accountability Act would “likely lead to rulemaking avoidance by agencies—increasing use of underground rules, case-by-case adjudication, or even prosecutorial actions, to achieve policies without having to surmount the additional hurdles presented by the new” requirements.

One might respond that such actions themselves would be illegal and should be stopped and punished. But this is the point; such actions already are common and are becoming more so. Numerous new “rules” exist only in various agency handbooks or in the minds of regulators who insert them into consent decrees that they force businesses to sign in order to end or avoid costly lawsuits. We all know of the targeting of certain groups by the IRS under this and several former administrations. It also is clearly the case that businesses and individuals often suffer targeted regulatory actions, even finding their access to certain facilities (e.g. banking for gun shop owners under the Holder Justice Department) cut off. What is less known is just how common it is for administrative agencies to use consent decrees, by which companies or individuals agree to detailed conditions in exchange for an end to government lawsuits and/or prosecutions, in order to further policy goals found nowhere in the law or regulatory code. The opportunities for abuse are endless, and they are frequently put into action. Regulators often simply tell those they govern “how it is.” Examples abound, including the education department’s decrees that public school districts must achieve “parity” in the number of white and nonwhite kids being suspended for nonviolent offenses, all without a scintilla of legislative authorization. Those who are regulated then face the choice: comply or take on an expensive fight in court, where the cards are stacked in the government’s favor.

Why does this go on? To begin with, administrative rulemaking now is essentially a bargaining process between bureaucrats with their own agenda and regulated persons and industries seeking to conduct their own business (and, too often, to hide behind regulatory rules constituting barriers to the entry of competitors into their various markets). There is no law, here, only bargaining “power,” including the power to sue and/or prosecute. And this lawless situation exists because Congress has, since at least the 1940s, utterly failed to do its job of lawmaking, and instead “delegated” it to essentially unsupervised administrators.

Since construction of the administrative state was begun under the Progressives in the early part of the twentieth century, agencies have gained ever-more power to act on their own authority. There have been occasional attempts to put limits on the “process” of rulemaking. Such attempts have centered on increasing safeguards to ensure that new rules go through a vigorous process of comment and review involving regulator and regulated. This sounds eminently reasonable, for the rule of law is all about process. One is not, after all, guaranteed that one will never lose one’s life, liberty, or property, but only that one can lose them only after receiving fair process. This is the core of our constitutional tradition.

But process includes the process of law making, and “laws” that are made by the wrong branch are incapable of having the clarity, consistency, and public character necessary for a law to truly be a law. Executive rule makers have every incentive to make rules that are contradictory, overly complicated, and even impossible to comply with in order to expand their own power, including the power to “forgive” rule breaking in exchange for signed consent decrees. Congress made all this possible by abdicating its authority, delegating the power to make law to agencies. It did so in order to allow its members to pass broad legislation decreeing that various problems be solved (by administrative agencies) then sitting back to “oversee” agency rulemaking. This has helped members get reelected, but the result is government by discretion, which is quite different from government according to law.

With its latest reform effort, Congress is trying once again to have its cake and eat it too by restricting agency actions without itself taking responsibility for them. But Congress is our lawmaking body. It is not the body the Constitution empowers to set down processes by which laws are made, it is the branch with the responsibility of making laws. The occasional dramatic oversight committee hearing, even if combined with ever-more-detailed (and often contradictory) rules about how to make rules cannot substitute for public lawmaking procedures conducted by actual lawmakers.

Defenders of our current regime would argue that Congress simply cannot do the job of making law—it requires too much “expertise,” time, and insulation from pressure groups given the demands of our massive economy and complex society. There are indeed significant problems faced by those seeking to make intrusive laws that aspire to regulate all aspects of public, private, and economic life. But the current answer to such problems—tinkering with a system that empowers regulators to make rules with the power of law but lacking essential characteristics of law—will only produce even more contempt for law. This is especially true at a time when the president habitually issues decrees making new laws and suspending or counteracting laws he himself signed, all with impunity.

Clearly our administrative system has run wild. Obama uses it again and again as a means of grabbing power and furthering a radical policy agenda he cannot get through Congress, most commonly by having his agencies issue new regulations and other, more informal dictates that run counter to established law. But tinkering cannot hope to solve the problem, instead it merely encourages yet more lawless action by this lawless administration. Congress must reassert its Constitutional powers, recognizing its own duty to legislate and refusing to cede such power and authority to administrative agencies.

Such action would not make governing impossible. Indeed, for good or ill, it would not even make big government impossible. Congress has the power to make law. It can reclaim this power from executive agencies and hire its own staffers to investigate and develop legislation that is detailed and intrusive, leaving only limited enforcement powers to the executive branch. All that is required is a sense of responsibility, a small amount of courage, and a willingness to both work and take responsibility for one’s actions. This will not happen, of course, for the very reason that it demands responsibility and work. But Americans need to stop thinking that tinkering will fix a system that is not just broken, but misbegotten—that is, ill-considered and doomed from the beginning to undermine the rule of law along with any system of ordered liberty.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law, and he is a Nomocracy in Politics Contributor.

2 Responses to ““The Problem with Tinkering: Why Administrative Law ‘Reform’ Is a Bad Idea,” By Bruce Frohnen”

  1. gabe


    Spot on!

    Perhaps, we could start by repealing the Administrative Procedures Act of the 1940’s with its rather dubious *delegation* of lawmaking authority to the Executive. Tinkering does nothing but further complicate the “maze” and only those creatures who inhabit the maze may find their way around it.

    I would also add that for a successful return to some semblance of constitutionally constrained government, the Judicial branch needs to step up and retrieve its Judicial Power from the Administrative Agencies and their adjudicatory mechanisms. There was a time when the Black Robes actually took their branch’s interest to heart and they repeatedly defeated the Executive’s attempts at lawmaking and adjudication. This is no longer the case.

    Curiously, one finds oneself advancing a more *activist* court in this regard (at least Rand Paul has done so.) such arguments miss the point as it is neither activist nor deferential adjudication that is sufficient. What is required is a Judiciary that *protects* both its institutional interest and the constitutionally imposed constraints upon the various branches of government. I prefer Hadley Arkes terminology – “judicial engagement.” Engage yourselves with the constitutions constraints – it is the one damn thing that the Black robes are empowered to do.
    But I guess as government has grown they too are apprehensive of having to contend with the innumerable controversies that will consequently arise from the Behemoth. They too have become lazy!!!

  2. gabe

    Let me here quote from Phillip Hamburger’s excellent book, “Is Administrative Law Unlawful?”, pg 320 -321. to demonstrate my points above:

    “At best, judges rely on deference to avert their eyes from administrative power, as if anxious not to recognize it for what it is. More soberingly, although personally protected in tenure and salary, they seem to fear for their institution, questioning whether it really can stand up to the administrative state. Either way, they have abandoned the supremacy of the law of the land and their office of independent judgment in accord with this law.
    They undoubtedly face a more profound predicament than did Coke, for he could hope for popular or at least professional vindication against prerogative power. In contrast, the judges today must worry that, in a democraticized republic, popular power will be aligned with the administrative state. They therefore seem to think that they should bow to their fears and defer to extralegal power. But why bother saving the court at the cost of giving up on the law.” (Perhaps, we should have posed that question to Chief Black Robe John Roberts with his tortured reasoning in upholding Obamacare, the most extralegal of all recent enactments and administrative determinations).

    Here again is Hamburger quoting Rosco Pound to demonstrate that this process of deference did not start with the New Deal congress or court:

    “As Rosco Pound recognized a century ago, “Nor is the Legislature alone in bringing back this extralegal – if not anti-legal element to our public law. Since 1880, the judiciary has begun to fall in line, and …. Powers which fifty years ago would have been held purely judicial and jealously guarded from executive exercise are now decided to be administrative only and are cheerfully conceded to boards and commissions.”

    This abuse has been long in the making and will take considerable effort (if the will can be mustered) to reverse. For over a century and a quarter our Black Robed elites have been abandoning their responsibilities and their *institutional interests*, (perhaps in a misguided effort to save themselves) and have embarked this country upon a course that will surely lead to the ultimate consolidation of power within the Executive agencies.

    Anyway, get the book. It is a great read and quite insightful even if it does tend towards p*ssing you off!


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