- - Wednesday, January 9, 2019



By Peter Wallison

Encounter Books, $23.99, 216 pages

Over the past 50 years, we have been evolving from a government by the rule of congressional law into a new extra-constitutional administrative state comprised of politically unaccountable federal agencies that rule through the issuance of regulations that now reach into every corner of American life. Peter Wallison’s “Judicial Fortitude” is a compelling analysis of the reasons for the administrative state’s growth, the ways in which federal agencies exceed their statutory authority and the threat all this now poses to the Constitution’s primary safeguards of our individual liberties.

Mr. Wallison argues that those threats are the result of the U.S. Supreme Court’s failure, since 1935, to challenge the delegation of Congress’ exclusive legislative authority to federal agencies. Those administrative bodies have a legitimate role in drafting the regulations required to implement Congress’ objectives within the limits inherent in the legislation. They have no authority, however, to use their positions to smuggle in their own objectives, and the book offers some startling examples of the extent to which they have done so.

One of the author’s favorite examples of this involves Title IX of the Education Amendments of 1972, which reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In due course, the agency in charge first ruled that the language prohibited sexual harassment by a professor. But then, in a series of rulings, it has applied the statute to instances of dirty language and complaints by women against male fellow students even when the conduct complained of is not “objectively offensive.”

To cap it all, the agency recently sent “Dear Colleague” letters to schools receiving federal funding in which it declared that Title IX required that access to bathrooms be determined by a student’s psychology rather than biology. Without specific evidence to the contrary, it is not credible that legislation enacted in 1972 could have had anything other than biology in mind when using the word “sex.” But that is just one example of how the administrative state feels free to act — or legislate.

The result of such administrative initiatives has been a mingling of executive and legislative powers in the same hands, that the Founders believed would prove the greatest threat to individual freedom, something they sought to prevent through the Constitution’s separation of powers.

The author suggests that this may explain the current trend in congressional legislating which is to provide a new bill with an appealing goal (a chicken in every pot, for example) while declining to give the implementing agency adequate guidance on how it is to be achieved. This can encourage some unlawful legislating on the part of the agency.

A more charitable explanation of this trend in legislating and of the Supreme Court’s 80-year failure to apply the nondelegation doctrine is the belief that we live in times so radically different from those in which the Constitution was designed that it’s assignment of exclusive legislative authority to Congress no longer makes sense.

This brings us to the heart of Mr. Wallison’s thesis. The Supreme Court has not only failed to apply its nondelegation for too many years, it has actually encouraged agency adventurism through its unanimous decision in the 1987 case of Chevron U.S.A. Inc. v. National Resources Defense Council Inc. This is now known as the Chevron doctrine and is generally described as requiring a court to accept an agency’s construction of a statutory ambiguity if “reasonable.”

This has proven an invitation for agencies to seek the broadest expansion of their authority that they can get away with, and they have been making the most of it. Fortunately, there are indications that at least some of the Supremes are developing second thoughts as to Chevron’s merits. But as long as it remains in place, it will prove a serious obstacle to badly needed reform.

Mr. Wallison believes that the court’s reassertion of its nondelegation doctrine is essential. As he sees it, the federal judiciary has two distinct roles. The first is to interpret the Constitution’s language; the second, to preserve the Constitution’s structure. With respect to its first role, the court will pick and choose which of the myriad appeals it will consider, and it is quite understandable that in so doing, it will exercise a degree of deference to the political branches of government as they are directly accountable to the public. That deference, however, has no place when the issue is whether one of those branches has acted beyond the limits of its constitutional authority. In such cases, no deference is appropriate because only the court can prevent the erosion of the Constitution’s protections of our individual liberties.

As Mr. Walliston notes in this timely and lucid book, this task will require a persistent exercise of judicial fortitude.

• James L. Buckley is a former U.S. senator.

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