Is regulation as we know it unconstitutional? It’s not inconceivable that, sometime soon, the U.S. Supreme Court could reach such a conclusion, invalidating much of the vast administrative apparatus created to promote such public goods as clean air, workplace safety and financial stability.
The court is right to worry about America’s dozens of regulatory agencies abusing their power or becoming an unaccountable fourth branch of government. But if that’s the concern, there are much better, more prudent and less disruptive ways to proceed.
Much of the administrative state rests on a time-honored convention: As long as Congress provides some “intelligible principle” to guide an agency, courts usually defer to its expertise in interpreting statutes and making rules. This deference has allowed the ambitious application of some very broad mandates. To promote public health, the Environmental Protection Agency imposes myriad emissions standards and extracts hundreds of millions of dollars in fines from violators. To protect investors, the Securities and Exchange Commission mandates extensive corporate disclosure, prosecutes financial fraud and much more.
