Would Too Many Cokes Spoil the Broth?

Paul Daly July 30, 2015

South of the border, more and more voices are joining the chorus of concern about the administrative state. It is difficult to trace cause and effect — administrative and executive power have long been a topic of concern on the left and right of American politics — though I suspect that President Obama’s use of administrative law to further his policy objectives is the proximate cause here.

Interestingly, as the author of a recent student note (“Justice Thomas and the Originalist Turn in Administrative Law“) observes, Justice Thomas has chimed in:

Until recently, it seemed that administrative law was beyond the reach of originalism at the Supreme Court. But this past term, Justice Thomas wrote six concurring and dissenting opinions amounting to a systematic originalist critique of administrative law.

In these cases–AAR, Perez, B&B Hardware, Wellness International, Texas Department of Housing, and Michigan v. EPA – Justice Thomas re-examined non-delegation, judicial deference, and agency adjudication of private rights. This Essay highlights that these opinions are the first sustained originalist analysis of administrative law by a Justice. It also identifies the ways in which the opinions connect to each other, to scholarship, to previous opinions, and to possible future opinions.

All of this has led Cass Sunstein and Adrian Vermeule to pen a robust response to modern critics of the administrative state (in which they note that the majority* of the Supreme Court has so far resisted any originalist turn), “The New Coke: On the Plural Aims of Administrative Law“:

In the early twenty-first century, public law is being challenged by a fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challengers frequently refer to the specter of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke. The New Coke is a shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. Despite its historical guise, the New Coke is a living-constitutionalist movement, a product of thoroughly contemporary values and fears — perhaps prompted by continuing rejection, in some quarters, of the New Deal itself, and perhaps prompted by a reaction by some of the Justices to controversial initiatives from more recent presidents. In two important decisions in 2015, however, a supermajority of the Court refused to embrace the New Coke, and properly so. Instead the Court issued the long-awaited Vermont Yankee II, insisting that courts are not authorized to add procedures to those required by the APA, and reaffirmed the validity of Auer deference to agency interpretations of their own regulations. The Court’s approach promises to honor the multiple goals of administrative and constitutional law without embracing novel, ungrounded claims that betray basic commitments of the public legal order. For now, the center holds.
A case, perhaps, of too many Cokes attempting to spoil the broth.

* Edited: it is not just Justice Thomas….

This content has been updated on July 30, 2015 at 20:43.