‘A Rehearsal of Defenses’: A Hobbled Administrative State Confronts a Dangerous World – Part 1

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By M. Ernita Joaquin
July 26, 2024

In this 2-part series, we discuss the administrative challenges for governance and the public interest post-Chevron.

“Winter is coming.”  

Remember when Game of Thrones hooked millions of viewers with its whispers of “a forgotten evil” amassing beyond the wall? Kings fought the Mother of Dragons for supremacy, unseeing the rising enemy of all that was breathing. A similar sleepwalking to danger has been haunting American politics: A fierce power struggle through, and at the expense of, the federal bureaucracy was the biggest crisis that nobody talked about. Then, one momentous week in June 2024, the Supreme Court crystallized the threat.

To recap, when the court recessed for the summer, many will remember Trump v. United States, where the majority (6-3) found immunity for the ex-president in cases of ‘official acts,’ which would cover many of Donald Trump’s efforts to pressure officials to overturn his re-election loss, immortalized by the insurrection of 2021. The ruling followed Trump v. Anderson, in which the court, refusing to decide whether Trump actually committed insurrection, denied the Colorado state court’s power to determine the same and kept alive Trump’s chances for re-election in 2024. “This majority’s project,” according to Justice Ketanji Jackson’s fierce dissent, “threatens to consume”  constitutional governance. Outside, critics decried the court’s “legal vandalism,” its aristocratic airs, and double standards, where an avowed dictator was concerned.

But while the court loosened Executive restraints, it also gave judges, in the name of accountability, new “exclusive power” at the expense of both Congress and public administrators. In Congress—mired in psychological and institutional dysfunctions—no lament was heard. The biggest blows landed recently, however, on the administrative body that serves the public interest, from food and worker safety to nursing home care.

The week of bureaucratic disemboweling began on June 27 when the majority, in SEC v. Jarkesy, reversed the agencies’ long-standing ability to impose fines or civil penalties without a jury. The ruling forces the likes of the EPA, USDA and SEC to take future cases to the court system, which would require enormous capacities that agencies never had possessed. In one stroke, warned Justice Sonia Sotomayor, the ruling jeopardized the constitutionality of hundreds of statutes.

Then on June 28, the hammer fell on the Chevron doctrine, which had governed judicial deference—“judicial humility,” in Justice Elena Kagan’s words—to agency interpretations of ambiguous laws, since 1984. With Chevron, agencies resolved substantive issues that Congress did not typically define with specificity (e.g., sources of pollution under the Clean Water Act). But in Loper Bright Enterprises v. Raimondo, the court dismissed any “special competence” on the part of the agencies, asserting the judicial role in resolving any ambiguities. With that, the high court transformed judges into “uber-legislators”  and itself into an “administrative czar”, regardless of the expertise or complexity involved in a policy issue.

Finally, on July 1, another bedrock principle was obliterated in Corner Post v. Board of Governors. Here, the court extended the statute of limitations for companies to file lawsuits against regulatory agencies. Such a finding for the plaintiff, the government lawyers argued, would lead to all sorts of entities pursuing belated challenges to agency regulations.

Public administration: behold the ghosts of lawsuits past, present and future.

The “tsunami” of litigations the court has authorized could ruin government and embolden courts everywhere to second-guess public agencies. Indeed, Chevron’s demise was inevitable after the court started rolling back historic civil rights. And no secrecy surrounds Project 2025 to undo the civil service system. Now, agencies are being constrained to serve the common good. With the First and Third branches potentially ushering a lawless Executive, an endless winter may have begun in government. The immediate task is to take stock; in the long run, we have to rediscover humility in our public life.

Ethicist Terry Cooper conceived of “a rehearsal of defenses” when employees are confronted with dueling obligations. Between, say, obeying a ‘Day One Dictator’ and fulfilling one’s constitutional oath, Cooper’s analogy of “movies in the mind” describes what government executives must scramble to figure out. The defenses must assume individual, organizational and institutional forms. Buffers for the merit system and stricter codes of conduct must be established. Officials must quickly audit the boundaries of existing and proposed regulations for a litigious road ahead. Congress must reassert its joint custody over administration and resolve the statutory ambiguities that judges would be happy to  interpret according to their preferences.

Resist a bureaucracy that is merely an extension of the president’s political party. A vibrant national administration is better for equality and rights, but presidential populism does not make for a functional executive. Since Nixon, the movement to hobble progressive administration has accompanied presidentialism, but it’s a paradox of American politics whose appreciation at the polls remains to be seen.

The coming winters will feel acrimonious, given the uncertainties unleashed by the Roberts Court. In higher ed, even as we confront similar deconstructions and divisions, we need to imagine the contours of administrative study and practice that must rise from the ashes post-Chevron.

---

Author: M. Ernita Joaquin is an Associate Professor of Public Administration in the School of Public Affairs and Civic Engagement at San Francisco State University. She publishes in the fields of executive politics, governance, crisis learning, and public affairs education. She holds graduate degrees from Northern Illinois University, University of the Philippines, and The University of Manchester. Email: [email protected] 

(4 votes, average: 5.00 out of 5)
Loading...