If Federal Regulators Aren’t Experts, The Entire Administrative State Is Suspect

Clyde Wayne Crews Jr.

The legitimacy of top-down rulemaking and planning by Administrative State experts rather than lawmaking by Congress is largely uncontested.

One professor at a leading national law school, with a platform in the New York Timesdismissed constitutional “originalists” as offering “homilies to olden times,” and disdainfully pronounced the Constitution a mere “theory of government invented in the 18th Century by men wearing breeches and powdered wigs.”

The rationale for today’s all-encompassing Administrative State regulation is that government actors are non-self-interested experts, and that political mechanisms are fairer and better at advancing well-being than private markets and interactions. The shift from the Framers’ classical liberal view that most complex problems are not public policy questions at all and are best solved voluntarily by individuals — to the view that large government is essential in all walks of life — has been remorseless.

major recent case (Kisor v. Wilkie) in the Supreme Court retains the concept of mandatory deference to these “experts,” albeit when heightened restrictions are met. Along with the continued insult to separation of powers (via re-legitimizing at the highest possible level the concept of delegation of lawmaking responsibility and authority) a problem with failing to revoke deference entirely is that so much agency guidance and interpretations never go through the formal Administrative Procedure Act rule-making process at all. The inadequate APA is all that remains when

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