One cannot help but read Judicial Fortitude as a creature of its moment.
Released as it is in the midst of confirmation hearings for Supreme Court nominee Brett Kavanaugh, Peter Wallison’s work is an unabashed call to arms for the new conservative judiciary. His analysis is far from novel—theorists have raised similar concerns for decades. But it comes as the conservative legal movement is about to clinch its greatest victory in 40 years: a Supreme Court majority.
The foe against which Wallison sets himself is the “administrative state,” the modern managerial arrangement that now dominates American governance. Its story goes something like this: Under traditional American constitutionalism, power is apportioned among the three branches, with the legislative primus inter pares. But as Wallison, a scholar at the American Enterprise Institute, and others have shown, the trend of the 20th century was the supplanting of the legislature by the executive branch.
As early as the 1870s, future President Woodrow Wilson dismissed outdated legislative rule, envisioning a future of efficient, expert technocrats fine-tuning America. Wilson’s progressive prejudice against popular rule would be enacted through the slow-but-steady growth of executive agencies—during WWI, the New Deal, the Great Society, through the new millennium. Today, proponents of the administrative state contend that a modern, fast-paced, economically advanced country like America cannot operate without it.
Modern executive agencies are responsible for a broad set of regulatory roles, from the Department of Defense to whatever the U.S. Codex Office does. There have even been executive agencies that oversee other executive projects, like the now-defunct Amtrak Reform Council or the Commission on the Social Security Notch Issue.
These agencies collectively issue more than 3,000 regulations a year, a deluge of de facto legislation that dwarfs Congress’s output. (For comparison, the 114th Congress passed 329 bills in two years, just 3 percent of the bills it proposed.) The effect of this disparity is that the people who actually rule, in the sense of exercising power on the population, are the unelected expertocrats in the administrative departments, not Congress.
“Although modern administrative agencies fit most comfortably within the Executive Branch,” Chief Justice Roberts writes in his dissent in City of Arlington v. FCC, “as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.”
Wallison shows how unchecked administrative power has produced perverse outcomes: for example, Operation Check Point, the Obama Department of Justice’s attempts to unilaterally cut off bank access for a disfavored industry. Or consider the Department of Education’s twisting of the Civil Rights Act’s stipulations on sex discrimination to create a regime of anti-sexual harassment enforcement many consider draconian.
What is really at stake, however, is not just particular abuses by executive departments, but rather an uncontrolled recentering of power within the federal government. The checks and balances system, as envisioned by the Founders, was meant specifically to keep power in the people’s branch and to ensure that executive power—which, in English common law, is the prerogative of the king, and which the Founders consequently distrusted—was kept at bay. As Chief Justice Roberts wrote, the administrative state reunifies what the Founders split, putting executive, legislative, and judicial in one set of hands.
Wallison explains this increase in executive power by a concurrent abdication of responsibility within Congress. Polarized and lethargic, Congress has taken to de facto “delegating” its legislative authority to executive agencies. By writing broad, goals-focused statutes, Congress dodges substantive debates and grants the executive branch nearly unlimited discretion in working out the actual policy details of a given statute.
This situation is further exacerbated by the Supreme Court’s consistent deferral to executive discretion. Two standing precedents—Auer v. Robbins and Chevron v. NRDC—bind the Supreme Court to defer to executive agencies’ interpretations of their own regulations and their authorizing statutes, respectively. Consequently, executive actions are rendered essentially unreviewable, in spite of the fact that Administrative Procedure Act specifically stipulates that they should be.
What is the fix? For Wallison, it is the eponymous “judicial fortitude.” Judges ought refrain from “activism” when it comes to matters of substantive law, he writes, but have a duty to actively preserve our constitutional order.
The solutions Wallison offers vary in their likelihood of implementation. Ideally he would like to see a more robust nondelegation doctrine, by which the courts bar Congress from unconstitutionally turning its legislative power over to the branch that has no prerogative to wield it. But nondelegation has been toothless for almost 200 years, Wallison notes, making its revival unlikely even in an arch-conservative Supreme Court.
More possible is a curb to Chevron and Auer deference. All four of the Court’s conservative justices—Roberts, Thomas, Alito, and Gorsuch—have signaled some concern about the doctrines, as has likely next-Justice Kavanaugh. A more restrained doctrine, Wallison argues, would involve a framework for nondelegation whereby Congress must cope with the large questions, while leaving details to executive agencies. Lower courts could even remand ambiguous executive actions to Congress for further consideration, putting legislative authority back in the hands of the constitutionally defined legislators.
Wallison’s proposals are practical and, as mentioned, timely. Judicial Fortitude is practically a handbook for the new conservative courts looking to curb administrative overreach. In this capacity, it is a must-read for those who want a blueprint for the next 5 to 10 years of judicial maneuvering.
With that said, Wallison’s would-be heroes should perhaps give us pause. To the extent that Judicial Fortitude is a critique of unaccountable, expertocratic systems, the courts are in many senses no less guilty than the executive branch. That branch, after all, has claimed for itself essentially unchecked legislative authority in a number of domains over the decades.
Today, nine unelected men and women with Ivy League degrees claim discretion to decide questions of fact fundamental to our society, questions like “what is marriage?” or “what is a person?” The appropriation of legislative power has not gone on only in the administrative branch, but also in the judicial.
In this view, the problem is not insufficient judicial fortitude, but rather congressional cowardice and, more fundamentally, a decay in popular government. Why will Congress not exercise its constitutionally delegated duty? That is not the question Wallison sets out to answer, but it is the question we should be concerned with.
Even if the Supreme Court is occupied by judges who oppose the managerialist turn in American society, the overwhelming tendency of that institution has proved supportive of that same trend. Wallison’s plan is perfectly fine for the here and now, but one should hardly go so far as to imagine that one can expect a permanent reempowering of the people to come from the branch that has so benefited from their disempowering.