Is the Center of Power in Washington Transforming?

Spring 2021 • Regulation
By Vern McKinley

Speculation is rampant among Supreme Court watchers about how the elevation of Amy Coney Barrett, along with President Donald Trump’s other two appointments, will affect the alignment of voting blocks of justices. One area of the law that this realignment could affect is the direction of federal governance through administrative law.

The Unelected is a historical, legal, and policy review of how far modern administrative law and the administrative state have strayed from a system amenable to a limited and accountable government reliant on enumerated powers and anchored checks and balances. The book was released well before Justice Ruth Bader Ginsburg’s seat on the Court became one of the key political issues of the 2020 election, but it does not take much imagination to get a sense from the book that the new justices will have a substantial effect on regulated businesses, large and small alike.

Copland is director of legal policy at the Manhattan Institute and The Unelected is his first book. The title’s reference is to “a host of unelected actors with government roles,” drawing attention to how far the “modern regulatory state,” as Copland calls it, has come unhinged from the “accountability to the voting public” model embedded in the philosophy of the Founding Fathers and the Constitution.

I previously reviewed Peter Wallison’s Judicial Fortitude (“Doing Damage to the Deference Doctrine,” Summer 2019), which shares the same publisher as The Unelected, Encounter Books. Wallison applied similar scrutiny to the rise of the administrative/​regulatory state, although Wallison and Copland take different approaches in their critiques.

Meet the unelected/ Early on, Copland writes, “As this book goes to press, America is facing a viral pandemic at least as large as any we’ve seen in a hundred years.” He notes that one of the members of the “unelected shadow government” he describes in the book is Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, and that two of the federal agencies at the forefront of the response to the pandemic are the Centers for Disease Control and Prevention and the Food and Drug Administration. He faults both agencies for having “thwarted the creation of an efficient testing regime,” saying that “they did not exercise [their] authority with any haste.”

Those agencies are peopled with just some of the rule makers, enforcers, litigators and others who control much of the federal government and, through lawsuits, exert growing national authority over state and local government.

Missing elements/ The titles of some of the book’s early chapters illustrate how this system came into being. “Legislating Without Congress” addresses the tendency of lawmakers to pass vague, “open‐​ended laws and leave the details to the unelected experts in the Executive Branch.” This state of affairs has been in place since the Progressive Era, but Copland hints that it may be coming to a close with the shifting alignment of the Supreme Court. He cites the 2019 case of Gundy v. United States and a dissent penned by Justice Neil Gorsuch and joined by Chief Justice John Roberts and Justice Clarence Thomas as an indication of a reversion back to so‐​called nondelegation principles. Justice Samuel Alito concurred with the majority opinion, hinting that he might also reconsider the line of cases. (Gundy was argued before Justices Brett Kavanaugh and Coney Barrett joined the court.)

In the early chapters, Copland uses case studies to reveal the real‐​world effects of the administrative state. One particularly chilling account from the chapter “Legislating Without Congress” begins, “On Monday, February 7, 2011, Dr. Peter Gleason took his own life.” Gleason had run afoul of the FDA’s limitations on off‐​label drug prescriptions. Even though the drug he prescribed is legal, he was charged with engaging in interstate commerce of a misbranded drug. Ultimately, his license to practice medicine was revoked. The rule Gleason was accused of violating was written by the FDA and not Congress, the accountable body.

The chapter “Administering Without the Executive” discusses the creation of administrative agencies headed by powerful directors who can stay in office well beyond the term of the appointing president. Among those agencies are the Consumer Financial Protection Bureau (CFPB) and the Federal Housing Finance Agency (FHFA). Copland debriefs the reader on the Humphrey’s Executor case that concerned a Federal Trade Commission member named William Humphrey who was originally appointed by President Calvin Coolidge and reappointed by Herbert Hoover. Franklin Roosevelt deemed Humphrey to not be adequately supportive of his New Deal agenda and wanted to remove him from the FTC. Humphrey died before the Supreme Court heard his case, but his estate took up the fight and won a favorable ruling, bolstering the sustainability of such holdover appointees.

A roughly similar issue has been playing out in recent years in Seila Law, involving the CFPB. Unfortunately, The Unelected went to press before the Seila Law case was fully litigated. In June 2020, the court determined that the structure of the CFPB violated the Constitution’s separation of powers, allowing for the president to remove the CFPB head. Also, after the book went to print, the Supreme Court heard another case along these lines, Collins v. Mnuchin, concerning the constitutionality of the structure of the FHFA.

The early stages in at least some aspects of administrative law point to a transformation not observed since the Progressive Era.

The chapter “Judging Without the Judiciary” chronicles how

the courts have abdicated the interpretation of laws — the core function of the judicial branch — to unelected agency officials. Unsurprisingly, those officials have acquired more power by stretching the plain meaning of the laws enacted by the Congress beyond recognition.

This trend is explained by Copland through a discussion of the early 1980s case Chevron v. Natural Resources Defense Council, with which observers of administrative law are very familiar. The ruling involved the level of judicial scrutiny that should be applied to agency interpretations of a statute. It grants “deference to administrative agencies … when a statute’s terms are ambiguous.” The Supreme Court may reexamine Chevron’s core reasoning and Justices Roberts, Alito, and Thomas have indicated doubts about the longstanding doctrine. Given the timing of the book’s release, Copland could not engage in speculation about how Justice Coney Barrett might scrutinize this precedent, but he does make a connection between Chevron and Justice Gorsuch. Gorsuch penned a lower court ruling openly questioning the underlying basis for Chevron and, interestingly enough, his mother was the Environmental Protection Agency administrator whose decision came under scrutiny in the case.

The chapter “Regulating Without Rulemaking” explains how agencies can elude the formal rulemaking process and the open‐​hearing and notice‐​and‐​comment periods that accompany rulemaking by issuing proclamations through platforms such as “policy interpretations” and “guidance.” These softer pronouncements allow an agency to adjust an agency’s prior legal position. The Supreme Court has allowed this practice to proliferate through deference to these agency interpretations of their own rules. Justice Thomas has stood out in challenging this practice as he argues that the “power both to craft and to interpret a regulation concentrates power in the executive.”

The last of the chapters with titles describing these seeming inconsistencies in the administrative law framework is “Lawyers Without Clients.” It traces the history of how lawyers initiate class‐​action cases that bring in handsome legal fees but are not in most cases initiated by wronged clients. As Copland explains, this category of lawsuits is “conceived by and for the benefit of attorneys.” That theme carries forward for many of the remaining chapters that provide narratives on tort suits and awards, tobacco cases, securities shareholder and fraud litigation, and emerging climate change lawsuits. Copland delves deep into the intricacies of procedural matters in these chapters, taking me back to my days in civil procedure class in law school. Whereas some of the changes on the Supreme Court may advance the principles of limited government, a larger, more intrusive government may result from the momentum of these lawsuits.

Conclusion/ The Unelected illustrates the difficulty of timing the release of a book to maximize the usefulness of the material presented. Prominent lamentations about “the deep state” will likely wane with Trump’s departure from D.C. Still, the topic is an important and enduring one. Although it is hard to say what is the perfect timing these days for a book on the evolving state of administrative law, this area of jurisprudence will surely be well trodden ground in the coming decades. The early signs in at least some aspects of administrative law point to a transformation not observed since the Progressive Era.

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About the Author
Vern McKinley

Visiting Scholar, George Washington University Law School