Many are offering opinions about what Judge Amy Barrett's potential confirmation to the U.S. Supreme Court could mean for different areas of jurisprudence. Here I want to focus on administrative law, a particular area of interest to me, but to the general public as well in light of concerns about the increased size and power of the administrative state in recent decades.
While there are many who are troubled by what they see as an administrative state that exercises too much power over the everyday lives of Americans, there are others who take the opposite view. And, among these, there are those who suggest, often in hyperbolic rhetoric, that if Judge Barrett is confirmed and takes Justice Ginsburg's place on the Court, the modern administrative state will be decimated as the authority of federal agencies to promulgate regulations is either eliminated or severely curtailed.
As I explained in an essay published by the Yale Journal on Regulation (online) shortly before President Trump announced Judge Barrett's nomination, I disagree. The title of my piece, "Justice Ginsburg's Replacement Won't Decimate the Administrative State," gives away my position.
If you are interested in administrative law, the role of agencies in our tripartite system of government, and separation of powers principles, I hope you will take a look.
Here are excerpts from the beginning and end of the piece:
This conjecture regarding the administrative state's threatened demise is premised primarily on the potential elimination or gutting of the nondelegation doctrine and the Chevron deference doctrine. I acknowledge that alteration of either or both may result in a curtailment of the authority wielded by the alphabet soup of federal agencies. But any change is likely to be more modest than melodramatic, with the array of agencies continuing to carry out their core missions, including protecting the health and safety of the American people.
And, significantly, any changes in the two doctrines that do occur by virtue of the addition to the Court of Justice Ginsburg's replacement are likely to bring administrative law – and, therefore, the actions of the administrative state – more in line with foundational separation of powers principles that are at the core of our tripartite system of government.
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All in all, Justice Ginsburg's replacement may well mean that, over time, there will be alterations in the nondelegation and Chevron doctrines in ways that will reduce, probably modestly, the power currently exercised by administrative agencies. Whether or not you think that this would be a positive development for any other reason, perhaps you'll agree that such doctrinal changes would be welcome because they would bring our system of governance closer to the Founder's originalist vision.
Of course, it goes without saying, but nevertheless it bears repeating, that no one knows for sure how a Justice will rule in any given case when he or she ascends to the High Court. And that is the way it should be and must remain. But I'm fairly confident that Judge Barrett, if confirmed, is unlikely to vote in a way that radically alters the power of federal agencies, while, at the same time, could vote in a way that moves the Court further in the direction of a Madisonian view of the importance of reinvigorating separation of powers principles.