'Judicial Fortitude' by Peter J. Wallison
EDITOR’S NOTE: In this RealClearBooks series, RealClear Book of the Week, we highlight recent nonfiction books from across the political spectrum. This week’s book is Peter J. Wallison’s “Judicial Fortitude: The Last Chance to Rein in the Administrative State” which comes out tomorrow from Encounter Books.
For years, conservatives and libertarians have been concerned about the growth of the administrative state — the sprawling array of administrative agencies that issue rules and regulations without much congressional oversight. Title IX procedures on colleges campuses for example, which many believe undermine due process and the rule of law, are the result of an agency within the executive branch loosely interpreting legislation passed by Congress. Peter J. Wallison, a scholar at the American Enterprise Institute and a lawyer who worked in the Reagan administration, argues in his new book “Judicial Fortitude” that in order to fight back against the administrative state, the Supreme Court must overturn decades-old precedent and re-establish the separation of powers.
Wallison traces the development of the administrative state back to its conception in the Progressive Era. Woodrow Wilson believed that administrative agencies were essential to governance in the complex modern world. The administrative state was enabled, Wallison argues, by decades of Supreme Court precedent that allowed the legislature to hand off more and more discretion to unelected bureaucrats. This culminated in the 1984 Chevron v. Natural Resources Defense Council decision in which the Supreme Court established that it would not overturn an agency’s interpretation of the law as long as that interpretation is “reasonable.”
Congress’s subsequent inability to rein in the administrative state is tied to the reason that the administrative state exists in the first place. Wallison argues that Congress has an interest in the growth of the administrative state because it allows Congress to avoid difficult bipartisan law-making. Instead Congress can pass broad policy and then hand off all the difficult work of interpretation and implementation to an administrative agency, thus expanding the power of bureaucrats and limiting the representation of the people.
Wallison’s hopes for reining in the administrative state depend on the contention that it is acceptable to overturn precedent, even in very important policy matters — a move which conservatives have long criticized liberals for promoting, and which figured heavily in Justice Kavanaugh’s controversial confirmation. Last term, in Janus v. American Federation of State, County, and Municipal Employees, the Court’s conservative majority overturned a decades-old free speech precedent. Justice Kagan described the decision as a weaponization of the First Amendment that was contrary to long-established interpretation. By promoting the reversal of precedent that dates from the 1980s in favor of particular policy objectives, Wallison and others risk pushing the Court further in the direction of partisanship and conservative policy objectives.
Regardless, “Judicial Fortitude” is essential reading for those hoping to gain an understanding of the economic and legal history of the administrative state. Even if one does not agree that Supreme Court precedent ought to be overturned, Wallison shows what is at stake in the current precedent, as well as the risks the administrative state poses to every individual’s liberty.
Max Diamond is a reporter at RealClearInvestigations.