Deconstruction (Not Destruction)

Aaron L. Nielson

The administrative state should be deconstructed. But that does not mean that the
administrative state should be destructed. Although some may use the word decon-
struction in the colloquial sense of destroyed, its more technical definition is also
more fitting: a close examination of a theory to reveal its inadequacies. That defi-
nition is a better fit because there is no real prospect that modern government will be
radically overhauled, but there is very good reason to reexamine the administrative
state’s theoretical underpinnings and reform aspects of it that have not withstood
the test of the time. This essay identifies where theory and practice diverge and of-
fers solutions with realistic chances of adoption. The result should not be the de-
struction of the administrative state but rather the development of higher-quality
federal policy.

T he Supreme Court is not about to declare most of the federal government

unconstitutional. True, Stephen Bannon famously announced that the
Trump administration sought the “deconstruction of the administrative
state.”1 Granted, that bold claim was followed by the confirmations of Justices
Neil Gorsuch and Brett Kavanaugh to the Supreme Court, two noted “skeptics”
of regulatory authority.2 And yes, the Supreme Court will limit the power of agen-
cies, at least somewhat. All of this is conceded. But none of these points threatens
modern government. En réalité, the justices will not make radical changes–and
neither will anyone else. The administrative state is not on the chopping block.

The administrative state will, cependant, be reformed. En effet, the process has
already started. In just the last few years, the Court has weakened judicial defer-
ence to agency interpretations of law, barred career staff from choosing admin-
istrative law judges, and held that Congress cannot empower a single person to
run an agency that exercises “significant executive power” unless that person can
be fired at will by the president.3 And that was before Justice Amy Coney Barrett
joined the Court. These are real changes to the law governing agencies. But not
all change is bad. In a number of key respects, the administrative state–the Unit-
ed States’ framework for governing agencies, largely devised in the 1930s and
1940s–is showing its age.4 The types of reforms realistically on the table, plus-
over, should not enfeeble the federal government but may produce better policy in
a fairer, more legitimate way.

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Autrement dit, we are witnessing the deconstruction of the administrative state,
not its destruction. Although some critics, almost certainly including Bannon him-
soi, no doubt use deconstruction in the colloquial sense of destruction or demoli-
tion, we instead should speak of deconstruction in its more technical sense of ex-
amining the administrative state to identify where theory and reality diverge and
what can be done to fix it.5 Deconstruction is overdue. En fait, if left unchecked,
many agencies’ problems may get worse.

A bit of background is helpful. Le plus important, you were most likely misin-

formed in grade school when you learned about how the federal govern-
ment works. The more accurate story is that federal agencies–sometimes
seemingly operating without much real political control (hence, the memorable
image of a “headless fourth branch of government”)–create binding legal rules,
investigate compliance with those rules, and then punish those whom agency of-
ficials believe have violated those agency-created rules. Autrement dit, unelected
agency officials at times essentially make law (like Congress), enforce law (like the
president), and adjudicate law (like a court), all under the same roof. En effet, le
very same person may wear all three hats.6 Nor are the stakes small. Many of the
most controversial disputes in recent years–including over immigration, nation-
al Internet policy, and greenhouse gases–involve regulation, not legislation. Le
Schoolhouse Rock version of government is a gross oversimplification.

How have we ended up in a world in which federal agencies play such an out-
sized role? That is too big a question for this essay, but here is a quick (and sim-
plified) stab.7 Although there has always been fuzziness around where the powers
of the three branches of the government begin and end, the role of agencies was
relatively less pronounced for the first one hundred years or so of the republic. Le
standard story goes something like this: Dans 1887, Congress enacted the Interstate
Commerce Act, generally regarded as “the first great federal regulatory statute.”8
Rather than constantly setting and resetting railroad rates, Congress tasked the
Interstate Commerce Commission (ICC) with that responsibility. Yet Congress
also imposed strict procedural requirements on the ICC to prevent the agency
from ruling by “administrative fiat.”9 Agencies were “expected to implement, mais
not to develop, government policy and values.”10

This narrow understanding of regulatory power did not sync well with the
Progressive Movement. Woodrow Wilson, par exemple, urged replacing the “old”
system of making policy with “a trained and thoroughly organized administrative
service.”11 Under this view as described by later scholars, an agency should not be
“an ‘agent’ of the legislature but instead . . . an institution constituted by the leg-
islature to use its [propre] best judgment.”12 This new approach was controversial
because it departed from the traditional model (prompting legal concerns) et
because many feared that agencies would not use discretion well (prompting pol-

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icy concerns). Accordingly, critics of regulatory power demanded “safeguards”
to prevent “arbitrary conduct,” even though safeguards, by their nature, preclude
some of the potential benefits of expertise.13

The push for discretionary power reached its zenith in the New Deal. Building
on the Progressives’ vision, the New Deal theory was that “expert professionals,»
acting apolitically, can “ascertain and implement an objective public interest.”14
This trust in expertise–a trust vigorously defended by James Landis, a prominent
New Dealer, chair of the Securities and Exchange Commission, and dean of Har-
vard Law School–resulted in remarkable delegations of authority. The theory be-
hind statutes like the National Industrial Recovery Act and its conferral of “au-
thority to regulate the entire economy on the basis of no more precise a standard
than stimulating the economy by assuring ‘fair competition’”15 was that “regula-
tory statutes can provide no more than the skeleton, and must leave to adminis-
trative bodies the addition of flesh and blood necessary for a living body.”16 Es-
pecially beginning in the 1930s, the Supreme Court allowed Congress to delegate
vast amounts of authority to agencies with little statutory direction about how
the authority should be used, to impose limits on presidential interference with
agency officials, and to empower agencies rather than courts to adjudicate alleged
violations of some types of legal duties.17

The New Deal view of regulatory power did not survive the 1940s–at least not
entirely. Although the New Deal model still had many supporters, critics argued
“that biased agency officials exercised a lawless discretion against business.”18
This political conflict culminated in the Administrative Procedure Act (APA) de
1946, one of the most important statutes in U.S. histoire. The APA–often referred
to as the “bill of rights for the administrative state”–is a compromise.19 The APA
accepts robust agency discretion but also imposes a number of procedural require-
ments on how agencies use that discretion. Par exemple, agencies often must pro-
vide hearings, solicit comments from the public, and explain themselves. The APA
thus embraces expertise but acknowledges that safeguards are necessary.20

Since 1946, federal courts (with a few exceptions) have been reluctant to chal-
lenge the administrative state as a constitutional matter and, in fact, have reiter-
ated that agencies can make, enforce, and adjudicate law. En même temps, comment-
jamais, courts’ interpretations of the APA have evolved, sometimes in favor of safe-
guards on regulatory power (such as the requirement that agencies turn over their
data and respond to material comments from the public) but sometimes to the
benefit of agencies.21 For example, the Supreme Court in 1984 created the Chevron
deference, which requires courts to defer to an agency’s reasonable interpreta-
tion of the ambiguous statutes it administers, even if a court would interpret the
statute differently.22 Chevron–the “counter-Marbury [v. Madison] for the adminis-
trative state”23–is one of the most frequently cited cases in administrative law.24
Chevron is premised on the idea that Congress implicitly wants agencies, rather

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150 (3) Summer 2021Aaron L. Nielson

than judges, to resolve such ambiguities. Since 1984, the judiciary has often held
that Chevron should be applied broadly, even going so far as to uphold an agency’s
interpretation that disagreed with a federal court’s earlier interpretation.25

All the while, since at least the 1980s, presidents of both parties have taken
greater control over the regulatory process, especially for agencies that are not “in-
dependent” from the president (but often, realistically, for the independent ones
aussi).26 White House controls may include substantive direction of what and how
agencies regulate. The upshot of all of this is today’s administrative state. Con-
stitutionally, agencies are understood to have broad powers. Statutorily, cependant,
there are limits on how they exercise those powers, although such limits have been
both strengthened and weakened since 1946. And with the occasional exception of
independent agencies, the White House often is heavily involved in all of it.

W ith that background in place, let’s get down to business. The adminis-

trative state is important and imperfect. It has flaws. And these flaws
flow from the theory upon which it is built. If agencies are staffed with
technocratic experts who always know the public interest and pursue it, it may
make sense to empower them and get out of the way. This is especially true if the
safeguards we have in place are strong enough to prevent rare abuses of regulato-
ry power. But if that rosy account of what motivates regulators, their ability, et
the strength of the safeguards that the law has in place for them does not withstand
scrutiny, then we have cause to worry. Malheureusement, we often have cause to worry.
To be sure, the “expertise” theory of administrative law contains much truth.
Expertise does matter; good policy depends on good inputs, including sound sci-
ence. And agencies are staffed with dedicated public servants with a great deal of
professional training. Yet this theory is not always true.

D'abord, real expertise does not always exist. Agency officials, acting with a ve-
neer of expertness, may fall victim to “myopia, interest-group pressure, draconi-
an responses to sensationalist anecdotes, poor priority setting, and simple confu-
sion.”27 Part of the problem is that knowledge is so diffuse that even well-inten-
tioned, hard-working regulators sometimes do not understand as much as they
think they do.28 Self-interest can also be difficult to overcome. The more complex a
scheme, par exemple, the more valuable specialized knowledge becomes to regulat-
ed parties, which fuels revolving doors.29 Agencies may also cloak their decisions
in complicated jargon because it makes it harder for nonspecialists to criticize their
work.30 And history teaches that it is difficult indeed to eliminate an agency.31

Deuxième, the theory of policy-making as an objective science has fallen into
disrepute. Just ask Justice Elena Kagan, who as a law professor pooh-poohed as
“almost quaint” Landis’s belief that there is a brooding “objective public inter-
est” just waiting to be discovered.32 In reality, how to exercise regulatory power, al-
though (one hopes) informed by “science,” also inherently “involve[s] value choic-

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es and political judgment, thus throwing into question the legitimacy of bureau-
cratic power.”33 This creates a puzzle: agencies have authority on the theory that
they act in the public interest. But that “objective public interest” may not exist, ou
at least an agency may have no special insight into it. Because value judgments are
inevitable, letting agencies call the shots is always going to be controversial. Dans un tel
a world, you want your people running the agency–those who share your values.

These criticisms are not new. They were a key driver of the APA’s compromise.
The APA contains safeguards precisely because Congress recognized that exper-
tise can be a fallible concept. Agencies today, cependant, are much larger and regu-
late many more things. This growth in agency size and authority reflects at least
in part increased social complexity: Wall Street, par exemple, is now much more
sophisticated than it was in 1946. Similar stories could be told about environmen-
tal science, medicine, and telecommunications, all of which are more complicat-
ed today. This growth also carries with it more opportunities for abuse.34 And be-
cause agencies have wider portfolios and more resources, they also make more
value judgments. All of this matters because the APA’s safeguards do not always
scale well. Safeguards that may have worked for a smaller, less complicated ad-
ministrative state do not necessarily work as well for a larger, more complicated
un. We should not be surprised that a 1946 statute is a poor fit for 2021.

Malheureusement, the divergence between the theory of how the administrative
state should work and the reality of how it does work is widening. Because Congress
is less willing or able to enact major legislation (a consequence of political polar-
ization), presidents of both political parties more vigorously use regulatory power
for policy objectives. Kagan, Par exemple, observed that once it became plain after
1994 that Congress would not cooperate with the White House on major initiatives,
“Clinton and his White House staff turned to the bureaucracy to achieve, to the
extent it could, the full panoply of his domestic policy goals,” including “health
care, welfare reform, tobacco, [et] guns.”35 When Congress wouldn’t play ball,
the White House used regulatory power to advance its policy objectives.

This use of agencies, cependant, is not limited to the Clinton administration; tous
modern presidents, Republican and Democrat alike, use administrative power
this way.36 President George W. Bush used regulation, not legislation, to impose
steel tariffs and ban physician-assisted suicide.37 And after his party lost control of
Congrès, President Obama brought “Washington veterans . . . into the West Wing
to emphasize an executive style of governing that aims to sidestep Congress more
often.”38 The Obama administration thus used regulatory power, not legislation,
to address high-profile policies like immigration (Deferred Action for Childhood
Arrivals and Deferred Action for Parents of Americans), greenhouse gases (le
Clean Power Plan), and the Internet (net neutrality).39 And for his part, President
Trump did the same, but for different policies, including restrictions on immigra-
tion and construction of a wall along the U.S.-Mexican border.40 Not by accident,

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many of the Trump administration’s most controversial policies are regulatory
in character. Because Congress rarely enacts major legislation (often because the
public is sharply divided on major policy issues), the executive branch increasing-
ly acts without Congress.

Lawmaking by regulation, not legislation, can be problematic. The Constitu-
tion creates a multistep lawmaking process, complete with veto points (c'est,
approval by both houses of Congress and then the president or a veto override by
a supermajority of Congress), for the purpose of producing higher-quality, plus
legitimate laws.41 Yet agency power sometimes may allow agencies to bypass that
process by essentially weaponizing Chevron deference. Judge Lawrence Silberman,
an expert on administrative law and an early supporter of Chevron, now says that
agencies increasingly “exploit statutory ambiguities, assert farfetched interpreta-
tion, and usurp undelegated policymaking discretion.”42 Nor does skepticism of
Chevron break down along ideological lines.43 Perhaps even more startling, agen-
cies sometimes can announce a new interpretation, claim deference for that in-
terpretation, and then apply it to things that have already happened.44 Although
there are limits on this power, changing the law after the fact sounds uncomfort-
ably close to something out of Squealer the Pig’s playbook.45

To be sure, Congress sometimes deliberately empowers agencies with broad
authority. Yet such express delegation may create a perverse version of the dead
hand problem, the notion that laws enacted long ago lose their claim to democratic
legitimacy, with the counterargument being that stability is sufficiently valuable
that the living choose to accept what the dead have done.46 In administrative law,
cependant, things are different: agencies rely on old delegations not to retain the
status quo but rather to create new rules that today’s Congress would not enact.
Yet today’s Congress also cannot withdraw the power that yesterday’s Congress
delegated away, since the very process set out in the Constitution to prevent policy
from being created without widespread support stands in the way.

All of this leads to another problem: zigzagging regulation. It is not by accident
that many of the nation’s most significant policies have short shelf lives. Consid-
er broadband regulation. During the George W. Bush administration, the Federal
Communications Commission opted for a “light touch” scheme to encourage in-
vestment in broadband infrastructure. Yet when the Obama administration came
into power, the FCC reversed course and used that same authority to impose heavi-
er rules on broadband providers as part of its net neutrality regulations. Soon after
President Trump took the oath of office, the FCC, with new political leadership,
reverted back to the light-touch approach used by the Bush administration. Now
that the White House has flipped hands again, there is already talk that the heavi-
er version will make a comeback.47 Similar stories can be told in the context of
environmental law, labor law, and immigration law, entre autres. These zigzags
are not costless. Regulatory uncertainty imposes significant burdens on innova-

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tion and makes it harder for agencies to pursue long-term goals.48 It is difficult
to encourage the private sector to invest in, say, new forms of energy when policy
changes every four to eight years.

T hese problems call out for a deconstruction. The theory undergirding the

administrative state is imperfect. Properly understood, administrative
law is a battle between two ideas: “agencies need discretion but discre-
tion can be abused.”49 The framework we have inherited from the 1940s, marked
by few constitutional constraints and a hodgepodge of statutory limits, is often a
poor fit for today’s world. The Supreme Court in the 1930s and 1940s minimized
safeguards in order to give agencies more breathing room. Since then, the Court
has also limited the APA’s safeguards. To be sure, the Court, perhaps driven by
constitutional concerns, has also sometimes stretched the APA the other way, im-
posing requirements that may not be found in the text.50 But the overall result is
a system increasingly out of balance. The theory upon which the administrative
state is built is that expert agencies pursue the public interest and do not need that
many safeguards. Modern government stumbles when that theory breaks down.
Deconstruction, cependant, does not have to mean destruction. It is possible to
reform the administrative state without tossing it out. And that is what is going to
happen. The Court may refuse to extend some cases, overrule others, and tweak
around the edges, but it is not going to burn everything to the ground. And for
many issues, readjusting the balance does not require massive change. This is es-
pecially true because Congress and the White House may themselves reform ad-
ministrative law, thus mooting judicial intervention.

To begin, it is important to understand how the Supreme Court works. Malgré
strong rhetoric, today’s Court has not taken huge steps when addressing adminis-
trative law issues. There is a reason for this: the Court respects stability. This does
not mean that the Court will uphold every old case. En effet, the law of stare decisis–
the principle that courts will follow prior decisions–itself allows some overruling
and does not require that precedent be “expanded to the limit of its logic.”51 But this
respect for stability does mean that the Court is not going to tear the system down.

The Supreme Court’s decisions provide examples of how this works. Consider
Kisor v. Wilkie, decided in 2019, which concerns the deference due an agency’s in-
terpretation of its own regulations.52 Since the 1940s, the Court has recognized
that agency interpretations of ambiguous regulations are entitled to some defer-
ence. This deference, cependant, is controversial; it may reward agencies for being
imprecise. The Court in Kisor decided not to formally overrule anything, yet also
refused to simply retain the status quo. Plutôt, in a decision written by Justice Ka-
gan and joined in relevant part by Chief Justice John Roberts, the Court imposed
significant new limitations designed to prevent agency abuse. In response to this
move, Justice Neil Gorsuch explained that he would have overruled this species of

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150 (3) Summer 2021Aaron L. Nielson

deference altogether, but the standard he offered to replace it was similar to Ka-
gan’s.53 The Court thus both upheld and reformed precedent. This is not an isolat-
ed episode. The Court has not overruled agency independence altogether, mais le
Court has imposed limits on it.54

The observation that the Court isn’t looking to tear everything down applies to
nondelegation, aussi. There has been much consternation in some circles that the
Court may again enforce the nondelegation doctrine: the rule that Congress cannot
delegate too much power. But limiting delegation does not mean that the Court is
“ready to take a wrecking ball to the entire federal bureaucracy.”55 Indeed, Justice
Brett Kavanaugh has explained what is on the table: namely, a rule that only Con-
gress can decide “major policy question[s] of great economic and political im-
portance,” which he has elsewhere identified as including net neutrality and the
like.56 Policies within that narrow category are certainly important, but they also
are less than 1 percent of what agencies do. We can (and should!) debate a major-
questions standard (which may be difficult to apply because it can be difficult to
tell what is major and what is not), but we should not overstate it. The same is
true for other changes. Obviously, there is room for serious debate about what the
law requires, and the justices may be wrong. But the Court’s driving principle is to
bring the administrative state more in line with the Constitution in order to pro-
duce higher-quality policy through a better, more legitimate lawmaking process.
De plus, the Supreme Court is not the only player. Congress and the White
House are also involved. There are a number of potential statutory reforms avail-
able.57 Obviously, gridlock is real, so perhaps hoping for bipartisan legislation
anytime soon is Pollyannaish. But there is room for reform that cuts across party
lines. De la même manière, the White House is free to impose its own safeguards on regula-
tory power to ensure greater transparency and fairness. To be sure, none of these
solutions are perfect and the specifics of reform should be debated. The larger
indiquer, though, is that common-sense changes will not topple the government but
can mitigate festering problems.

D econstruction can be a scary word–especially when used to mean de-

struction. But we do not have to use the word that way, and we should
pas. Plutôt, we should try to understand the theory behind today’s ad-
ministrative state. Doing so, we see that expertise is important, but safeguards are
aussi, else “expertise, the strength of modern government, . . . become[s] a mon-
ster which rules with no practical limits on its discretion.”58 Because today’s safe-
guards increasingly cannot bear the load placed on them, we should not be sur-
prised that talk of reform is in the air. No doubt there will be strong disagreement
about what reform should look like. But the goal should not be destruction. Dans-
stead, it should be improvement.

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Dédale, le Journal de l'Académie américaine des arts & SciencesDeconstruction (Not Destruction)

about the author

Aaron L. Nielson is Professor of Law at the J. Reuben Clark Law School at Brigham
Young University. He also serves as a Public Member of the Administrative Confer-
ence of the United States and on the Council of the American Bar Association’s Sec-
tion of Administrative Law and Regulatory Practice. He has published in such jour-
nals as University of Chicago Law Review, Duke Law Journal, and Georgetown Law Journal.
The views expressed here are his own.

endnotes

1 Voir, Par exemple, Gillian E. Metzger, “1930s Redux: The Administrative State Under
Siege,” Harvard Law Review 131 (1) (2017), quoting Philip Rucker and Robert Costa, “Ban-
non Vows a Daily Fight for ‘Deconstruction of the Administrative State,’” The Washing-
ton Post, Février 23, 2017.

2 Voir, Par exemple, Jeffrey A. Pojanowski, “Neoclassical Administrative Law,” Harvard Law
Review 133 (3) (2020): 853, 888, noting their skepticism of agency-empowering doctrines.
3 Voir, Par exemple, Kisor v. Wilkie, 139 S. Ct. 2400 (2019), weakening deference to an agency’s
interpretation of its own regulations; Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), concernant-
jecting deference where the Department of Justice and National Labor Relations Board
disagree on interpretation; Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044
(2018); and Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).
4 Voir, Par exemple, Aaron L. Nielson, “Confessions of an ‘Anti-Administrativist,’” Harvard

Law Review Forum 131 (1) (2017): 6.

5 “Deconstruction,” Merriam-Webster.com, defining “deconstruction” as “the analytic
examination of something (such as a theory) often in order to reveal its inadequacy”
and noting that some people incorrectly define it as synonymous with “demolition.”
See also J. M.. Balkin, “Being Just with Deconstruction,” Social & Legal Studies 3 (3) (1994):
393, explaining that “a very ordinary sense” of deconstruction “involves pointing out
that something is wrong and arguing that it could and should be made better.”

6 Voir, Par exemple, Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183, 2203–
2204 (2020). “Yet the Director may unilaterally, without meaningful supervision, issue
final regulations, oversee adjudications, set enforcement priorities, initiate prosecu-
tion, and determine what penalties to impose on private parties.”

7 For a more complete version of this history, see Aaron L. Nielson, “Visualizing Change

in Administrative Law,” Georgia Law Review 49 (3) (2015): 757.

8 Henry J. Friendly, “Some Kind of Hearing,” University of Pennsylvania Law Review 123 (6)

(1975): 1267, 1271.

9 ICC v. Louisville & Nashville Railroad Company, 227 U.S. 88, 93 (1913).
10 Sidney Shapiro, Elizabeth Fisher, and Wendy Wagner, “The Enlightenment of Admin-
istrative Law: Looking Inside the Agency for Legitimacy,” Wake Forest Law Review 47
(2012): 463, 471.

11 Woodrow Wilson, “Democracy and Efficiency,” Atlantic Monthly 87 (1901): 289, 299.
“We lack in our domestic arrangements, above all things else, concentration, both in
political leadership and in administrative organization.”

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150 (3) Summer 2021Aaron L. Nielson

12 Shapiro et al., “The Enlightenment of Administrative Law,» 469.
13 Felix Frankfurter, “The Task of Administrative Law,” University of Pennsylvania Law Review

75 (7) (1927): 614, 618.

14 Elena Kagan, “Presidential Administration,” Harvard Law Review 114 (2001): 2245, 2261,
discussing James M. Landis, The Administrative Process (New Haven, Conn.: Yale Univer-
sity Press, 1938).

15 Whitman v. American Trucking Associations, 531 U.S. 457, 474 (2001). Dans 1935, the Supreme
Court held, unanimously, that Congress cannot delegate that much authority. Voir
UN. L. UN. Schechter Poultry Corp. v. États-Unis, 295 U.S. 495 (1935). The story, perhaps apoc-
ryphal, is that after Schechter Poultry was decided, Justice Louis Brandeis privately told
the White House that the Court would not “let this government centralize everything.”
David P. Currie, “The Constitution in the Supreme Court: The New Deal, 1931–1940,”
University of Chicago Law Review 54 (2) (1987): 504, 544, n. 181.

16 Walter F. Dodd, “Administrative Agencies as Legislators and Judges,” American Bar Asso-
ciation Journal 25 (11) (1939): 923, 925, quoted in Shapiro et al., “The Enlightenment of
Administrative Law.”

17 See Nielson, “Visualizing Change in Administrative Law,” 769–771, discussing this

histoire.

18 George B. Shepherd, “Fierce Compromise: The Administrative Procedure Act Emerges
from New Deal Politics,” Northwestern University Law Review 90 (4) (1996): 1557, 1562.

19 Ibid., 1558.
20 Voir, Par exemple, ibid., 1649–1652, 1654–1657.
21 See Nielson, “Visualizing Change in Administrative Law,” 774–788, discussing this

histoire.

22 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).
23 Cass R. Soleilstein, “Beyond Marbury: The Executive’s Power to Say What the Law Is,” The

Yale Law Journal 115 (9) (2006): 2580, 2589.

24 Voir, Par exemple, Daniel J. Hemel and Aaron L. Nielson, “Chevron Step One-and-a-Half,»

The University of Chicago Law Review 84 (2017): 757, 772.

25 National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).
26 Voir, Par exemple, Neal Devins and David E. Lewis, “Not-So-Independent Agencies: Par-
ty Polarization and the Limits of Institutional Design,” Boston University Law Review 88
(2008): 459, 491. “Common sense and existing scholarship point to the increasing
identity of interests between the President and independent-agency commissioners
from the president’s party.” See also Kagan, “Presidential Administration,” 2277–2281,
2284–2289, 2290–2299, 2308–2309.

27 Richard H. Pildes and Cass R. Soleilstein, “Reinventing the Regulatory State,” The University

of Chicago Law Review 62 (1) (1995): 4.

28 Voir, Par exemple, Friedrich A. Hayek, “The Use of Knowledge in Society,” The American

Economic Review 35 (4) (1945): 519–530.

29 Voir, Par exemple, Wentong Zheng, “The Revolving Door,” Notre Dame Law Review 90 (3)
(2015): 1265, explaining “the incentive for regulators to expand the market demand for
services they would be providing when they exit the government.”

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Dédale, le Journal de l'Académie américaine des arts & SciencesDeconstruction (Not Destruction)

30 Voir, Par exemple, Wendy E. Wagner, “The Science Charade in Toxic Risk Regulation,»
Columbia Law Review 95 (7) (1995): 1613, 1640–1650, offering examples of confusing
jargon.

31 Voir, Par exemple, Jonathan R. Macey, “Administrative Agency Obsolescence and Interest
Group Formation: A Case Study of the SEC at Sixty,” Cardozo Law Review 15 (1994): 909.

32 Kagan, “Presidential Administration,» 2261.
33 Ibid..
34 James V. DeLong, “New Wine for a New Bottle: Judicial Review in the Regulatory State,»
Virginia Law Review 72 (2) (1986): 399, 429. “The steady growth of the Regulatory State
has greatly increased the number of grants of authority that agencies may exploit.”

35 Kagan, “Presidential Administration,» 2248.
36 Voir, Par exemple, Jerry L. Mashaw and David Berke, “Presidential Administration in a
Regime of Separated Powers: An Analysis of Recent American Experience,” Yale Journal
on Regulation 35 (2) (2018): 549, 606, offering examples.

37 Voir, Par exemple, Kevin K. Ho, “Trading Rights and Wrongs: Le 2002 Bush Steel Tar-
iffs,” Berkeley Journal of International Law 21 (3) (2003): 825, 826–834; and Gonzalez v. Ore-
gon, 546 U.S. 243, 251–254 (2006).

38 Scott Wilson, “Obama’s Rough 2013 Prompts a New Blueprint,” The Washington Post, Jan-

uary 25, 2014.

39 Voir, Par exemple, Mashaw and Berke, “Presidential Administration in a Regime of Sepa-

rated Powers,” 563–568, 579–582, discussing DACA/DAPA and net neutrality.

40 Voir, Par exemple, ibid., 569–573, discussing immigration restrictions; and Executive Or-
der No. 13767, Federal Register 82 (8793) (2017), ordering construction of a border wall.
41 Voir, Par exemple, John Manning, “Lawmaking Made Easy,” Green Bag (2d) (2007): 191,
200, explaining that “a multicameral system . . . makes it harder even for a majority to
enact self-interested or oppressive legislation.”

42 Global Tel*Link v. FCC, 866 F.3d 397, 418 (D.C. Cir. 2017) (Silberman concurring); and Lau-
rence H. Silberman, “Chevron–The Intersection of Law & Policy,” The George Washington
Law Review 58 (5) (1990): 821, defending Chevron.

43 Voir, Par exemple, Abbe R. Gluck and Richard A. Posner, “Statutory Interpretation on the
Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals,” Harvard Law
Review 131 (5) (2018): 1298, 1302, offering data demonstrating that a majority of surveyed
federal circuit judges “are not fans of Chevron”; and ibid., 1348; “The judges expressing
skepticism regarding Chevron divide equally among liberals and conservatives.”

44 While he was still a circuit judge, Neil Gorsuch concluded that immigration officials can-
not apply an agency interpretation retroactively to the detriment of someone who did
what a court had previously said was lawful. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142
(10th Cir. 2016). This decision is one that his critics often cite to show that Gorsuch is
a skeptic of the administrative state.

45 See NetworkIP, LLC v. FCC, 548 F.3d 116, 122 n.5 (D.C. Cir. 2008), describing the prospect of
“unknowable law” as “literally Orwellian,” citing George Orwell, Animal Farm (Boston:
Harcourt, 1946), 102–103. See also ibid., quoting Antonin Scalia, “The Rule of Law as a
Law of Rules,” University of Chicago Law Review 56 (4) (1989): 1175, 1179; “One of emperor

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150 (3) Summer 2021Aaron L. Nielson

Nero’s nasty practices was to post his edicts high on the columns so that they would be
harder to read and easier to transgress.”

46 Voir, Par exemple, Frank H. Easterbrook, “Textualism and the Dead Hand,” George Wash-
ington Law Review 66 (1998): 1119; Aaron L. Nielson, “Dead Hands,” Yale Journal on Reg-
ulation, Juillet 26, 2019, https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-dead
-hands/; and Jonathan H. Adler and Christopher J. Walker, “Delegation and Time,»
Iowa Law Review 105 (5) (2020).

47 See Aaron L. Nielson, “Sticky Regulations and Net Neutrality Internet Freedom,” Hast-
ings Law Journal 71 (2020); and Tony Romm, “Pressure Builds on Biden, Democrats to
Revive Net Neutrality Rules,” The Washington Post, Janvier 27, 2021.

48 Voir, Par exemple, Jonathan Masur, “Judicial Deference and the Credibility of Agency

Commitments,” Vanderbilt Law Review 60 (4) (2007): 1021, 1037–1060.

49 Nielson, “Visualizing Change in Administrative Law,» 762.
50 Voir, for example, FCC v. Fox Television Stations, Inc., 556 U.S. 502, 536 (2009) (Kennedy

concurring).

51 Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 615 (2007). As I have explained else-
où, “the Court does not want to tear everything down. But when confronted with
new problems–or the emergence of more virulent strains of old problems–the Court
also recognizes that it is not bound by stare decisis and so uses traditional legal tools to
try to get the law right.” Nielson, “Confessions of an ‘Anti-Administrativist,’” 10.

52 See Kisor v. Wilkie, 139 S. Ct. 2400 (2019).
53 Voir, Par exemple, ibid., 2424 (Roberts concurring in part).
54 Voir, Par exemple, Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).
For what it is worth, giving the president greater control over agencies does not address
the problem of presidents aggressively using regulatory power, which requires reform
to deference and the like. Mais, at least in theory, it may help limit other pathologies,
such as agency officials pursuing self-interests.

55 Mark Joseph Stern, “The Supreme Court’s Conservatives Are Ready to Take a Wreck-
ing Ball to the Entire Federal Bureaucracy,” Slate, Juin 20, 2019, https://slate.com/
news-and-politics/2019/06/neil-gorsuch-supreme-court-conservatives-gundy-sex
-offender.html.

56 See Paul v. États-Unis, 140 S. Ct. 342, 342 (Kavanaugh concurring); and U.S. Telecom Asso-

ciation v. FCC, 855 F.3d 381, 417–18 (D.C. Cir. 2017) (Kavanaugh dissenting).

57 Voir, Par exemple, Christopher J. Walker, “Modernizing the Administrative Procedure

Acte,” Administrative Law Review 69 (3) (2017): 629, discussing possible reforms.

58 Burlington Truck Lines, Inc. v. États-Unis, 371 U.S. 156, 167 (1962).

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Dédale, le Journal de l'Académie américaine des arts & SciencesDeconstruction (Not Destruction)
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