‘A Rehearsal of Defenses’: A Hobbled Administrative State Confronts a Dangerous World – Part 2

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

By M. Ernita Joaquin
August 23, 2024

“You work hard on stuff that is good for the world, for a long time, for years, and then it’s trashed, and you’re told you have to participate in trashing it,” said Kathy Kaufman, a clean air policy expert who retired from the E.P.A. in 2017 after 29 years. “You’re in a difficult position, and you know you have to figure out what to do.” – C. Davenport, The New York Times, 12/7/2020

The party is just beginning.

When Kathy Kaufman retired, the political party’s conquest of the administrative state was unfolding. In the contest between the two mediating forces in the system of separated powers, partisanship has recently gained the upper hand over technocratic bureaucracy.

To recap, in Part 1, we discussed how the Supreme Court handed conservatives a victory by repudiating the Chevron doctrine. The twists in the 2024 race, including the assassination attempt on Donald Trump and Joseph Biden’s withdrawal, diverted attention from Chevron’s demise. Its takedown represents a crowning achievement of a movement that has embraced a new kind of Constitutional originalism, sustained a war chest for political communication and successfully remade the judiciary within a single generation.

Observers are skeptical whether the inversion will improve solutions to some of the nation’s most intractable problems. Federal officials are also wary of partisan oversimplification of the high court’s decisions. As reported in Government Executive:

In a hearing on Wednesday, Rep. Lauren Boebert, R-Colo., asked Environmental Protection Agency Administrator Michael Regan which regulations he would revoke in light of Loper Bright. Regan…said her request was “ill-formed.” Boebert countered that she was asking about the “rogue bureaucrats” at EPA and erroneously said the court ruled many of the agency’s existing rules were unconstitutional. 

“We’re going to adhere to the Supreme Court and continue to do our work in accordance to (sic) the Supreme Court,” Regan said. “The Supreme Court didn’t tell us to repeal anything.”

Such excoriation of public servants is likely to intensify, and litigation will increasingly burden the government in this era of climate threats, degenerative intelligence and widespread inequality. This challenge would persist even if Democrat Harris were to defeat Trump, whose administration’s 2-for-1 regulatory directive and other attempts to dismantle the civil service have provided valuable lessons for the next Republican president’s playbook.

While Trump seeks reelection, the Supreme Court has emerged as a more effective bureaucratic deconstructor. The Roberts Court saw a “Fourth Branch” and cut it down to size. What Trump was unable to achieve through the “unitary executive” thesis of his presidency, his judicial appointees have deftly accomplished.

Partisanship will keep Congress—the other branch with a constitutional duty to see that its laws are faithfully executed—turning a blind eye to the recent imbalance. Without dwelling on the logistics of having judges across the land tackle the nitty-gritty of complex statutes (“Welcome to hell, SCOTUS,” as one commentator put it), the court’s message to Congress was clear: shape up, or judges will do the job for both you and the Executive.

Should and could judges be “administrative czars” and “uber-legislators”? GOP lawmakers do not seem to be asking that question—a partisan veil shrouds congressional appetite for institutional defense. According to Daryl Levinson and Richard Pildes, the “Madisonian assumptions of branch-based competition” did not account for the channeling of political rivalry and cooperation “through an institution the Framers could imagine only dimly but nevertheless despised: political parties.” Parties find it easier to issue more directives than to reform Congress. Today, a Republican chamber in lockstep with its judicial allies is pushing a bill that tasks agencies, amid shrinking appropriations, to revise rules that leaned on Chevron or justify why they should remain intact. Another bill would increase reporting requirements or reduce agency salaries to $1. To get a better picture of the “tsunami” of work required, see the lawmakers’ letter to the SBA Administrator regarding the review of past, pending, and final agency rules not yet challenged in court.

Some are reluctant to abandon balance. Democrats want to inject the issue of “judicial imperialism” into the 2024 race. A proposed bill would codify deference and provide a mechanism for Congress to quickly overturn court decisions that misinterpret Congressional intent. But this party is far behind its conservative counterpart, and agencies will largely be left to their own devices.

If anything, Trumpism compels us to confront what we take for granted. In places like the CFPB, OSHA and FDA, officials have been proactively preparing for legal challenges since the 2022 West Virginia vs. EPA ruling on power plant emissions. In public affairs education, the meso-micro debate described by Alasdair Roberts should gain renewed attention. Emphasizing administrative law and possibly producing fewer managers could help us reassess the constitutional balancing role traditionally occupied by public administration. Finally, in this new landscape, a genuine countermeasure must ensure that citizens understand their government and the stakes involved. Bridging that gap may prove to be the most challenging task of all.

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Author: Dr. Ernita Joaquin is an Associate Professor of Public Administration in the School of Public Affairs and Civic Engagement at San Francisco State University. She writes 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]

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