University of Notre Dame Law School
Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.
First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged premise that the 1930s was a decade of moral wisdom about governmental design that should serve as a ground for constitutional reasoning that is superior to the actual text of the Constitution. The 1930s was a thoroughly awful time, worldwide and in the United States; and while America avoided some of the very worst trends of those times (although it was a worldwide leader in others, such as eugenics), the intellectual and political foundations of that decade were a terrible ground for theories of government. We do not make the absurd claim that everything that emerged from the 1930s was therefore bad simply by virtue of that origin, nor do we make the equally absurd ad hominem claim that everyone who supports anything from the 1930s must support everything from that time. We only want to call into question the (generally implicit) premise that the governmental forms of the 1930s are sacrosanct because that decade should be seen as the real constitutional founding. The intellectual foundations of the 1780s and 1860s—the decades that led to the ratification of the actual constitutional text and the Civil War Amendments—are far superior to those of the 1930s. To be clear, we think that constitutional interpretation should be about the Constitution, not about time periods, values, or constitutional “orders,” but if for some reason one wants to focus on time periods, the 1930s should be the last time period to which one looks for guidance.
Second, we offer some very modest legislative tweaks to the existing institutions of the administrative state that we believe will move American government more toward the correct constitutional baseline with only minimal changes in actual governmental functions. Major rules should be enacted using constitutional (if expedited) lawmaking procedures; all executive officers should, by statute if not by constitutional command, be made removable at will by the President; and all deprivations of life, liberty, and property by the federal government should be accomplished through due process of law, which means adjudication through an Article III tribunal. None of these tweaks requires abolition of any federal agency or repeal of any substantive organic statute. Adopting them will not establish constitutional government. But it will be better than abandoning the enterprise altogether in favor of rule by “experts” deemed fit, by virtue of their college degrees, to govern their unenlightened “lessers.”
Gary S. Lawson & Steven Calabresi,
The Depravity of the 1930s and the Modern Administrative State
Notre Dame Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/585