At a time when the Supreme Court is turning its sights on the administrative state and enhancing the profile and powers of the president, it is worth recalling that behind our national complex of agencies lies a constitutional settlement that has structured government for approximately one hundred and thirty years. Its roots lie in the period from 1873-1921, and its defining values are interbranch cooperation, delegated problem-solving authority, and administrative expertise. This Article proposes to tell its story.
A century and a half ago, America was just healing from its Civil War wounds when a host of new problems descended: financial crisis, unemployment, the rise of monopolies, political corruption, and waves of urban migration and immigration. Something had to be
one, and so the nation revamped its hundred-year-old institutions to make them quicker, responsive, and more powerful. It relaxed separations between branches to allow greater coordination between Congress and the President, and it delegated new responsibilities to the Executive Branch and a new administrative state. America became a “regime of statutes.” It became, in short, a modern democracy.
The process began with executives, early Gilded-Age governors and presidents who rode the rising tide of discontent to forge reputations as popular heroes. Congress, in a pragmatic, problem-solving mood, followed with a host of statutes that gave the President unprecedented new powers: to set aside lands for conservation, prescribe tariffs and railroad shipping rates, break up monopolies, and set down national priorities in the federal budget, among others. These laws would build an executive able to set policy on its own—a modern president, in other words. Crucially, the Supreme Court gave this regime its blessing in a series of cases upholding the constitutionality of these interbranch compromises.
Beginning in the late 1970s, and accelerating recently under the tenure of Chief Justice John Roberts, the Supreme Court has turned on this settlement, rolling back statutory arrangements that mandated agency independence or gave Congress a role in overseeing administration. The recent abandonment of Chevron deference to agency interpretation is typical. The Court sees the regime of statutes as legislative abdication, a constitutional betrayal. Yet in its time, this regime represented Congress’s best effort to make the Constitution work. Knitting together the political branches in a collaborative policymaking process that traded formal separations for interbranch cooperation, the regime succeeded in releasing government power to solve the nation’s problems, notably during two world wars and the Great Depression.
What the Court proposes instead—a kind of orthodox separation-of-powers formalism-raises several dangers. Not only does it threaten to leave the government without power to meet new challenges and crises, it also risks weakening Congress further, freezing in place the President’s powerful agencies with no countervailing mode of legislative oversight or administrative counterweight. Behind modern American government lies a regime of statutes, a finely wrought settlement designed not only to release power, but also to contain it. We upset this balance at our peril.
