Americana Administrative Law by Beau J. Baumann :: SSRN

When emergencies arise people expect government power to reach its peak.  But in the covid-19 pandemic, the nation's greatest health crisis in 200 years, the Supreme Court has opted to maximize its own power and to hobble the national government.  The Presidency has been called imperial, the federal bureaucracy self-aggrandizing, the Congress a competitor for power.  But the judiciary has managed to with a straight face declare itself above the fray.  Even its most senior member - Stephen Breyer  has indulged that notion in the pages of his new book The Authority of the Court and the Peril of Politics.  John Roberts helped himself sail through his nomination by claiming to be like an umpire - calling balls and strikes.

But anyone who claims for him or herself unreviewable power cannot plausibly maintain a claim of indifference to the expansion of one's own power.  As the Supreme Court readies to reverse a half-century of precedent in the Mississippi abortion case, it has already hobbled the Department of Health and Human Services which sought to stem evictions.  Now it has crippled the ability of the Labor Department to encourage the vaccination of private sector workers.

Beau Baumann argues here that the Courts should stand back from arrogating their own power and stop interfering in Congress's work.

- GWC

Americana Administrative Law by Beau J. Baumann :: SSRN

By Beau J. Baumann - U.S. Department of Justice

Americana Administrative Law

61 Pages Posted:

Beau J. Baumann

United States Department of Justice

Date Written: February 13, 2022

Abstract

On January 13, 2022, the Supreme Court blocked the Biden Administration’s vaccine-or-test mandate, a measure meant to save thousands of lives amid a one-in-a-century pandemic. Justice Gorsuch’s concurrence suggested that the Court’s decision vindicated the nondelegation doctrine, even if indirectly. Gorsuch argued that Congress could not be left to its own devices because open ended delegations corrupt congressional incentives. The Gorsuch concurrence marks the triumph of a new pitch for judicial self-empowerment this article calls “Americana administrative law.” Rather than hyping the threat of executive aggrandizement, nondelegationists are deploying cynical and declinist notions of Congress to justify judicial self-empowerment. The “Americana” in Americana administrative law comes from nondelegationists’ attempt to restore an idealized Congress that has never worked as cleanly as they suppose. Beyond the nondelegation doctrine, the administrative law literature often justifies judicial interventions with claims of congressional “gridlock,” partisanship, and decline.

This article has two main contributions. First, this article describes the rise of Americana administrative law from the “constitutional politics” around the nondelegation doctrine. I provide a genealogy for this approach and frame it as a pitch for judicial self-aggrandizement. Second, this article provides a corrective. The courts are neither above nor outside separation-of-powers conflicts. They are instead participants in the ongoing inter-branch contest for the ability to determine outcomes. Americana administrative law ignores much of what we know about Congress. Congress is an evolving body at the end of a centuries-long Anglo-American experiment with legislatures. It has developed “hard” and “soft” powers that allow it to realize its agenda and defend itself from the other branches. This article argues that the law and the literature should drop the pretense that judicial doctrine can “fix” an institution as complex as Congress.

 

Suggested Citation:

Baumann, Beau, Americana Administrative Law (February 13, 2022). Available at SSRN: https://ssrn.com/abstract=