Ideas to Impact Blog

A Fisherman’s Tale of the Administrative State: The Fight Against our Fourth Branch of Government

“Even the British didn’t make you pay to put a redcoat in your house.”

— Paul Clement

Ryan Owens, co-director of the Center for the Study of Liberal Democracy at the University of Wisconsin-Madison, spoke with Paul Clement, Director of The Bradley Foundation Board and the 43rd solicitor general of the United States.

After thanking those in attendance who partner with The Bradley Foundation and Impact Fund, Mr. Clement reminded listeners that most of the Constitution’s “Thou shalt nots” are directed at restraining the federal government, not the individual. The Founders’ intent was to preserve liberty by making it very difficult to create unlimited and overweening laws. Early court cases supported this perspective, but after the second Roosevelt administration, the administrative state was unleashed.

The Framers might see a victory for limited government in the fact that Congress focuses a great deal more today on its oversight role in government than on trying to pass new rules and laws. But this perspective ignores the more troubling reality: rules and regulations are growing at an exponential rate, created and executed by bureaucrats in federal agencies who never appear on a ballot. How does one protect oneself from a regulator buried deep inside a federal department?

This is the quandary facing every American citizen, and it’s up to attorneys who understand and focus on the unromantic branch of administrative law to rein in the unchecked regulatory power of the federal government. For about forty years, the reigning principle, Chevron deference, is that any statutory ambiguity should be interpreted in favor of the government. A textbook case involves the nuns of the Little Sisters of the Poor, who after ten years and several victories in court are still fighting government bureaucrats trying to force them to pay for contraception for employees.

But this could soon change. In January, Mr. Clement argued a case before the United States Supreme Court on behalf of commercial fishermen who are forced to pay the salaries of regulators put on their boat to basically find fault with their business. After oral arguments, many observers of the Court expect Chevron deference to fall or be severely limited. Either result, should it come to pass, will have the effect of freeing citizens from the whims of unaccountable bureaucrats.