For the first time in nearly a century, the conservative scholars, judges, lawyers, and advocacy groups challenging the constitutional foundations of the modern administrative state have reached a critical mass. At stake is the structure of American government and its ability to address issues at the heart of political economy, from countering corporate power to protecting workers and the environment.
But these critics may be inviting in a Trojan Horse. Because most of them locate the Constitution’s meaning at the time of its ratification (an approach known as originalism), history plays a central role in their challenges. These days, they blame the administrative state’s fall from constitutional grace on the Progressive Era. However, as I argue in a forthcoming article, returning to 19th century administrative law would smuggle in an unwelcome consequence: largely eliminating judicial review of the constitutionality of agency action. As a result, they may have to choose between their originalist attack on the modern administrative state and preserving a type of court review they value highly.
Those who seek to restore administrative law to its 19th century foundations – I will call them foundationalists – emphasize two key features that distinguish the 1800s from what followed. First, they argue that Congress legislated with far greater specificity, granting agency actors little to no discretion to adopt regulations that bound the public. Second, they contend that de novo judicial review (i.e., review without any deference to agency findings of fact or interpretations of law) was available for government actions implicating “core private rights” to life, liberty, and property. Agencies could issue final decisions only as to “public rights,” such as the distribution of public lands, and private “privileges,” such as a license to operate.
Scholars debate the historical accuracy of foundationalists’ claims about 19th century administrative law. Nonetheless, those claims are gaining traction in the conservative legal movement and the courts. Adoption of either of them today would work a major transformation of administrative law and contraction of the administrative state. For instance, in the area of environmental law, existing environmental regulations would be wiped away, along with the EPA’s authority to issue any such regulations in the future. Courts, not federal agencies, would have to determine wetland designations. And statutory interpretations by the EPA, which spurred Chevron deference, would no longer receive it.
But foundationalists may find 19th century administrative law to be a Trojan Horse. They have assumed without examination that courts played a primary role in constitutional interpretation during the 1800s, including by evaluating the constitutionality of agency action. New research casts doubt on that assumption. As I show in my article, agencies, not the courts, took the lead in interpreting and implementing the Constitution during the 19th century (a phenomenon known as “administrative constitutionalism”). And it appears that courts hardly reviewed the constitutionality of agency action at all.