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Are government mandates constitutional?

Hillsdale College
Dr. Joseph Postell

In the past couple of years, we have heard a lot about laws and rules passed and implemented by government agencies. But are these mandates from the EPA and the CDC and other government agencies constitutional? That’s the very topical question that will be addressed at this year’s Constitution Day address at the University of West Florida. The man with the answers, or at least the persuasive arguments, is Dr. Joseph Postell, an associate professor of politics at Hillsdale College in Hillsdale, Michigan. His talk is called “Is Administrative Law Constitutional?”.

Dr. Joseph Postell: The words administrative law don't sound like anything that would be controversial or interesting to people who aren't specialists or lawyers. But basically, administrative law is the kind of law that is the dominant way that law is made in America today. Think of all the controversial topics that have come up over the last year in American politics. Vaccine mandates in the workplace, eviction moratorium after the COVID pandemic broke out, or climate change regulations through the Environmental Protection Agency. All of that is administrative law. It's basically laws made by administrative agencies, either rules or orders or memos that are run through agencies. And then the other side of administrative law is, when an agency makes a controversial decision, almost inevitably, the agency will get sued by somebody, and the courts have to come in and decide whether the agency's administrative laws were lawful or not. And so administrative law often refers to how courts supervise and review the decisions that are made by all of these agencies that make most of the decisions in our country today.

Bob Barrett: Are administrative judges, is that a full time position or just a side gig for a regular judge?

Postell: Administrative judges are not regular Article Three judges. Article Three of the Constitution sets up the judicial branch of our national government. And it says that if you're a federal judge, you have tenure during good behavior, and also your pay can't be affected by the decisions of the legislative and executive branches. Obviously, if (a) legislator or an executive could change the pay of a judge, that would influence the decision of the judge. So you have this independent judiciary. The idea is they're supposed to be impartial. Administrative judges, they're not Article Three judges. They actually work inside the agencies that try the cases. So, for instance, the Environmental Protection Agency has its own judges. It doesn't have to go to an independent court to get enforcement of its decisions. So these administrative judges, they vary significantly from agency to agency. But generally speaking, they are the agency's own judges that enforce and judge the decisions of the agencies themselves.

Barrett: No spoiler alerts right here, because you're coming to Pensacola to talk about is ‘administrative law constitutional?’ I'll just ask, why is that a question?

Postell: It wasn't a question until probably, let's say, 20 to 30 years ago, or even maybe ten years ago. If you tried to bring cases at the Supreme Court to say that an administrative agency's powers or its structure were unconstitutional, you might get one vote on the Supreme Court, and the other eight would rule against you. But things are starting to change with the Supreme Court. There are new justices who are taking a more skeptical view of administrative law. And so I think one of the interesting things we'll discuss at this talk is whether the Supreme Court is going to start changing its views on the constitutionality of this whole administrative structure that we've built over the last century. So it maybe wasn't a question until 20 years ago or so, but now it's increasingly becoming a question. I think that's because the idea of an administrative agency that makes law, that executes law, and that judges law, seems to be at odds with the way that we all learned about American government in high school. Which was. You have a Congress that makes law, not an agency. And you have a president who carries out the law. And then you have these independent judges who judge law. So it does seem like the way we do things in modern government today might be somewhat at odds or intention with the original Constitution. And so these judges, these new justices on the Supreme Court, are really starting to take a more skeptical view, I think, because they're motivated by concerns that we've gone too far down this road towards an administrative state.

Barrett: Is part of the question that if a judge is hired and works for an agency, they're always going to rule for that agency?

Postell: Yeah, that is certainly a concern. And depending on who you trust on these questions, some of the statistics seem to suggest that an agency is a lot more successful when it argues cases in front of its own judges than when it has to go to an independent court. So, two examples the National Labor Relations Board and the Securities and Exchange Commission both boast that they win so many cases in front of their own administrative law judges. I think a lot of people look at that and they say, of course you win all of the cases when you're the ones paying the judges to decide the cases.

Barrett: Are those decisions subject to appeal?

Postell: So, this is something that's really important. If you lose a case in front of an administrative law judge, you have to exhaust your internal appeals. So usually you have to appeal to the commission itself or the agency itself. And then once you've appealed the decision made by the agency to the agency, you've lost that appeal. Then usually you can go to an Article Three court. So one of the concerns that people have is with this doctrine called Chevron doctrine, which basically says that if a court is reviewing a decision made by an agency, it has to give some deference to the agency's initial decision. So some people will argue that even though you get to appeal to an independent court, eventually, that court has to defer to the decision made by the agency in the first place. Sort of like whenever you watch review on a football game and the call goes up to the booth, the call on the field has to be overturned only if there is clear and convincing evidence. That's sort of like the kind of deference that courts will often give administrative agencies.

Barrett: Can you think of an example where one of these decisions was overturned and it's something that the average person might have heard about.

Postell: There are a lot of cases that have captured public attention, even though they're not familiar with all of these little details about administrative law. I'll mention one which is the most recent case called West Virginia versus Environmental Protection Agency. That case had to do with climate change regulations for power plants, where the Obama administration had said, we're going to actually require states to put more solar and wind energy in their energy generation in order to offset the greenhouse gas emissions from coal fired and other kinds of plants. The Supreme Court looked at that and they said the Clean Air Act does not give the Environmental Protection Agency the authority to do that. And so that was the case about administration law, even though most people thought of it merely as a case about climate change. So really, these cases and administrative law affect almost the whole spectrum of political issues in America today.

Dr. Joseph Postell’s Constitution Day speech, “Is Administrative Law Constitutional?” will be Monday, September 12 at 6 p.m. in the UWF Music Hall.

Bob Barrett has been a radio broadcaster since the mid 1970s and has worked at stations from northern New York to south Florida and, oddly, has been able to make a living that way. He began work in public radio in 2001. Over the years he has produced nationally syndicated programs such as The Environment Show and The Health Show for Northeast Public Radio's National Productions.