April 29, 2020
By Timothy Sandefur and Jon Riches
As Americans enter the debate over how best to re-open the nation’s economy, they’ll have to address one major obstacle to economic recovery: the massive bureaucracies that are together often called the administrative state. Although once a relatively small part of the executive arm of government, today’s administrative agencies have grown so large and powerful that they now essentially make and impose law without going through the normal legislative process set out in the Constitution—or, more accurately, constitutions.
After all, elected lawmakers at both the state and federal levels have given these agencies broad authority to govern everything from how much fish may be harvested from lakes, to the angle at which chairs in offices may lean back, to the thickness of ketchup in the packets served at fast-food restaurants. Legislators pass expansive and vaguely worded statutes and leave it to bureaucracies to fill in the details—yet as the adage has it, the details are just where the devil is. Staffed by hired officials who are purposely insulated from control by voters, these regulators write rules that have the effect of law, prosecute alleged violations of those rules—typically in their own “courts”—and issue decisions interpreting their own rules. Those decisions, in turn, are typically rubber-stamped by courts that are supposed to ensure that our state and federal constitutions are faithfully obeyed. In other words, agencies act as lawmaker, sheriff, judge, and jury. That means they violate the principle of separation of powers that has long been recognized as a crucial protection for individual rights.
Today, when the failures of federal and state regulatory agencies have been so dramatically highlighted—and when more Americans than ever before are being governed by executive-branch orders instead of laws enacted by elected officials—it’s imperative that our legal system provide greater protections against the administrative state.
Fortunately, we have tools to rein in the administrative state, hold regulators accountable, and better fulfill the promises of our federal and state constitutions. In our new Goldwater Institute paper out today, we set forth some of the more promising proposals for ensuring that the administrative state operates within constitutional boundaries at the state level.
We propose four separate reforms. First, we recommend legislation that would amend state administrative codes to eliminate judicial deference to agency decision-making. Second, we recommend Right to Earn a Living legislation that imposes a more protective legal standard in occupational licensing cases. Third, we suggest model legislation that requires agencies to issue permits based on clear, unambiguous standards and comply with strict deadlines. Finally, we recommend a regulatory reset that requires the legislature to re-authorize regulations on a regular basis.
Together, this package of reforms reduces overall regulatory burdens and injects much needed accountability into the administrative state, ensuring that this often unchecked “branch” of government operates within its proper constitutional boundaries.
Timothy Sandefur is the Vice President for Litigation and Jon Riches is the Director of National Litigation at the Goldwater Institute. They are the authors of the new paper Confronting the Administrative State: State-Based Solutions to Inject Accountability into an Unaccountable System.