Judicial Fortitude: The Last Chance to Rein In the Administrative State

by Peter J. Wallison

In this book, Peter J. Wallison argues that the administrative agencies of the executive branch have gradually taken over the legislative role of Congress, resulting in what many call the administrative state. The judiciary bears the major responsibility for this development because it has failed to carry out its primary constitutional to enforce the constitutional separation of powers by ensuring that the elected branches of government—the legislative and the executive—remain independent and separate from one another. Since 1937, and especially with the Chevron deference adopted by the Supreme Court in 1984, the judiciary has abandoned this role. It has allowed Congress to delegate lawmaking authorities to the administrative agencies of the executive branch and given these agencies great latitude in interpreting their statutory authorities. Unelected officials of the administrative state have thus been enabled to make decisions for the American people that, in a democracy, should only be made by Congress. The consequences have been unnecessary regulation has imposed major costs on the U.S. economy, the constitutional separation of powers has been compromised, and unabated agency rulemaking has created a significant threat that Americans will one day question the legitimacy of their own government. To address these concerns, Wallison argues that the courts must return to the role the Framers expected them to fulfill.

Genres: Politics, Law

Kindle Edition

Published October 16, 2018

About the author

Peter J. Wallison is an American lawyer and the Arthur F. Burns Fellow in Financial Policy Studies at the American Enterprise Institute. He specializes in financial markets deregulation. He was White House Counsel during the Tower Commission's inquiry into the Iran Contra Affair. He was a dissenting member of the 2010 Financial Crisis Inquiry Commission, frequent commentator in the mass media on the federal takeover of Fannie Mae and Freddie Mac and the financial crisis of 2007–2008 and wrote Hidden in Plain Sight (2015) about the crisis and its legacy.

Reviews

[Amy · Rating 3 out of 5]

I am not sure who the intended audience for this book is because I thought it was me but I finished it and now I am a lot less sure. At the very least, this should have been preaching to the choir. But...the choir checked out three chapters ago and wants to go home now.

The book reminded me of the first time I heard about Chevron deference. A girl in the class ahead of me at law school was talking about her job and breezily threw out, “Of course, Chevron is our big issue…”
I nodded and pretended I knew what she was talking about because I wanted to seem cool, but for the life of me, I could not imagine what an oil and gas company had to do with administrative agencies.
Reading this book felt a bit like being back in that conversation, except this time I am intimately familiar with Chevron deference. Too familiar, perhaps. I couldn’t step back and appreciate the big picture provided by the author because the breezy tone kept distracting me.
Which, perhaps, best summarizes the audience problem. It makes too many assumptions to appeal to a general audience. At the same time, it feels too basic to appeal to those already familiar with the issues. It does not engage with potential critiques, so it won't really change any minds. And though it advocates strenuously to "bring back the nondelegation doctrine" and "get rid of Chevron deference," I don't think it leaves the average reader with any way to do anything about it.
Maybe it was written for judges?

The title ("LAST CHANCE TO REIN IN!") and focus on current examples (i.e. Kavanaugh appointment, Trump administration, etc.) make me think it was intended for a more general audience of lawyers. A rallying cry, if you will, to rein in the administrative state.

The thesis fits easily within conservative legal circles. The nondelegation doctrine has gained a lot of traction in recent years--and for good reasons. The administrative state is monstrous and generally unchecked. Congress seems incapable, or unwilling, to do anything. Chevron is just...a mess. And a huge due process violation. I fundamentally agree with the author's position on both doctrines.

But I don't feel like I gained any new insights or anything helpful from this book. It jumps around a lot, sending the reader off to "see points in Chapter 6" or "reference Chapter 2" or "read analysis in Chapter 5." It reads borderline partisan throughout (at least, rather anti-Democrat.) And it spends so much time ripping the administrative state to shreds that even I (who daily fights the administrative state!) was left longing for someone to take its side!

At the same time, the book does an amazing job with quotes. I highlighted several for future reference. On the upside, it actually made me look forward to block quotes which is rare. Downside: the well-worded quotes made it hard to focus on the relatively meh writing style of the rest of the book.

I've been hard on this book, perhaps more than it deserves, because I came in with such high expectations. It really does a good job with data and clearly illustrates many of the problems with the administrative state. It is a very readable overview in many respects. I just think it needed more fleshing out to be full useful to legal readers.

If you want to read about administrative law from an anti-administrative state perspective, I'd go with Philip Hamburger instead.


Pre-Review
My boss is geeking out about this one and usually what he geeks out about I also geek out about so...

[Jenni · Rating 3 out of 5]

I mostly disagree with his main premise here, and it doesn't benefit his book that he doesn't seriously engage with critiques of his position.

Also, take a shot every time that Wallison mentions Brexit, and fasten your seatbelt. He thinks that Brexit basically happened because voters were angry about undemocratic processes in the EU and that it totally wasn't all about the immigration stuff (spoiler: it was probably more about immigration stuff). He thinks that America is headed for its own legitimacy crisis if administrative agencies continue to pass regulations under Chevron deference, like the Dear Colleague letter telling schools they could lose federal funding if they don't allow transgender students access to the bathroom of their choice. He cites that exact example in the book. Seriously, that's what he thinks the issue is in our country.*

Anyway, it's not three stars because I disagree with him. I've been throwing four star ratings to most Federalist Society members willing to state their case thoughtfully and teach me something new. This guy's writing just sucks. He repeats the same definition of Chevron deference fifteen times. The book went on way longer than it should have. It was going to be a two star rating until I got to his chapter presenting analyses from economists and public choice theorists, which he did a pretty good job putting together. (We get their points, by the way. It's not like leftists are disagreeing with your economists. If you think they are, then you need to stop pretending you're winning by engaging with strawman arguments on Twitter.)

Good riddance. And get an editor.**

----

*Personally, if there's a crisis of legitimacy in our country, it's going to be because Wallison's pseudo-intellectual friends are funded by think tanks and professorship grants that are funded by oil and pharma billionaires (who, by the way, hate regulation, strictly because it's "a separation of powers thing, you wouldn't understand it") and they're all writing pseudo-intellectual articles pretending that we're in a theocracy, or that we don't need to address climate change, or that the 2nd Amendment's reference to a "well-regulated militia" was actually, when you really think about it properly, a reference to "an eighteen year old individual's right to purchase AR-15s." And they'll cherry-pick their favorite quote from The Federalist Papers to support it. /rant

**Also, Wallison should probably consider looking into the whole "climate change" thing that scientists have been screaming about. At one point in the book he starts randomly dunking on Progressives for supporting eugenics like a hundred years ago (which is fine and deserves a good dunking). But then he gratuitiously says, "For the Progressives, eugenics was 'settled science' -- a forerunner of the left's views in our own day about climate change." WOW. If I didn't believe in climate change then I'd probably whine about the EPA, too. On a less insane note, nobody benefits when extremists overstate their case. We need to be able to have thoughtful discussions that acknowledge valid concerns. For example, I agree with your point that there are big and bad economic costs to regulation. But your book-length hot take about curbing the administrative state isn't going to produce meaningful compromise if you can't cop to the fact that there is at least some modicum of 'settled science' that these agencies are trying to address.

[Erica]

I'm not going to rate this book because I don't think I objectively can. I don't agree with Wallison's premise or his argument (let's just say it's clear he's not a law professor) but his arguments helped me immensely in my research supporting Chevron (& arguing against Major Questions Doctrine).

That being said, who exactly is the target audience of this book? Not academics, I don’t think. Conservative thinkers and op-ed columnists, perhaps?

Wallison argues that the administrative state, as it exists today, is unconstitutionally legislating and making policy, against Congress’ express wishes (judging by what they wrote in statutory text). But his very best examples of this don’t hold up to scrutiny. Operation Chokehold, for example, was shut down. Interpretations under Title IX are, by his own admission, interpretations only, not rulemaking.

Explicitly rejecting New Deal reforms as bad is just… in bad faith. And, how can he ignore the value of consumer protection, food and drug, and other regulations? Just look at the airline industry. After federal regulations were rolled back, we had horrible, preventable accidents due to relaxed inspections and less oversight.

Now this is turning into more of a rant than a book review! But it is what it is.

[Aaron · Rating 4 out of 5]

Clear and compelling argument that the administrative state has overstepped its Constitutional bounds and that only the judiciary, as guardians of the Constitutional structure, can fix it. If you've ever wondered how new regulations can be issued by a new administration even though Congress hasn't passed a new law (sometimes in decades), this book is for you.

[Tim · Rating 5 out of 5]

Another indispensable text in the growing library making painfully clear that the always expanding and increasingly self-empowering administrative state's unconstitutional existence and operations, and its trampling of our supposedly inviolable but essentially defunct constitutional rights, is precisely the kind of arbitrary, unitary, centralized power with no regard for anyone's natural rights or for the health, flourishing or even existence of a free market economy, that the American Founders sought to prevent.

They hoped to prevent it by creating our Constitution, which requires separation of powers among federal government branches authorized only to exercise powers enumerated to them, with any and all other powers reserved to the people through their elected state representatives and governors.  I.e., federalism, another constitutional requirement destroyed by the administrative state.

The chapter on the disaster known as Chevron deference, i.e., the anti-constitutional requirement for federal judicial deference to "reasonable" interpretations by executive agencies' of their own anti-constititionally promulgated legislation, i.e., "rules and regulations" - legislated, executed and adjudicated by the same agency rather than by three different government branches as required by the Constitution to prevent tyranny and preserve liberty - is especially good.

The book is a bit different than many in its focus on the judiciary but makes a good case that its failure to keep the other two branches in their proper lanes and to be the one to "say what the law is" when necessary "more than anything else ... has contributed to the growth of the administrative state."