Public domain image via https://www.federalregister.gov/reader-aids/office-of-the-federal-register-blog/2014/09/cfr-color-selection-for-2015

One of the great tragedies inflicted upon this nation by its first Socialist president, Franklin Roosevelt, was the creation of the apparatus of the administrative state. Under his administration, executive agencies were not only allowed to decide how to enforce laws passed by the Congress, they actually got into the lawmaking business via the creation of a web of federal regulations that governs most facets of our lives. This graph shows the explosion of federal regulations since the Federal Register was first published in 1938.

Image from GW University https://regulatorystudies.columbian.gwu.edu/reg-stats</p?

What started as an aim towards efficiency has created a system where executive agencies act with power unimagined by the Congress or the President. Where President Trump can have his black-letter legal authority to ban immigrants from any nation ruled unconstitutional by some stoner judge in Hawaii, the EPA can declare jurisdiction–I am not making this up–over a mud hole in your backyard by calling it “waters of the United States.” To make matters worse, in two key Supreme Court cases, Auer v. Robbins and Bowles v. Seminole Rock Sand Company and a third case that holds those two together, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court declared that courts could not second-guess agency interpretations of their own rules unless the interpretation was indefensible on its face. So the administrative state got a get-out-of-jail-free card that neither the Congress nor the President received, immunity from legal scrutiny of agency interpretations.

Shortly the Supreme Court will hear a case called Kisor v. Wilkie which may bring this travesty to an end. This synopsis from Wikipedia shows how the administrative state works:

James Kisor is a veteran Marine from the Vietnam War, and had been a participant in Operation Harvest Moon. In 1982, stating that he had developed posttraumatic stress disorder (PTSD) from his service, Kisor sought disability benefits from the United States Department of Veterans Affairs (VA). On review, the VA disagreed he has PTSD, and denied him disability benefits. Kisor appealed that decision in 2006, this time with additional documentation that was not available in 1982, including his service record. The VA granted benefits with this information, but with a start date of 2006 rather than 1982. The VA interpreted its own regulations that the new documents presented were not “relevant” to his first request in 1982, despite Kisor stating that the VA affirmed his PTSD from his combat record forms. Both the Appeals Court within the VA and the United States Court of Appeals for the Federal Circuit affirmed the VA’s decision, affirming that Auer gave the VA the ability to define the meaning of “relevant” in this regulation, and putting the onus on Kisor to demonstrate it was not a valid interpretation.

Can you imagine how our history would be different if Bill Clinton had been legally permitted to define the meaning of “is”? Be he couldn’t and neither should the VA.

Why did the VA act this way? Well, because they knew they could. And because they had no institutional interest in paying Mr. Kisor back-benefits for the nearly quarter century that he’d been requesting them. And, because, we can probably be sure that by this time Kisor had become a boil on the collective ass of a lot of VA officials and they had decided “f*** this guy, we make the rules.”

What makes Kisor so interesting is that it addresses a level of federal rule-making that is rarely discussed. There are major federal rules created by the rule-making process and there are internal agency rules on how to implement rules they have created.

This leads to an interesting process in which agencies create rules, rules that can deprive you of liberty and property, without any public input and the courts are required to let agencies interpret those rules as they damned well please so long as they don’t go against the actual text of a rule. In fact, it serves as an encouragement to write rather unclear rules so as to not lock in any firm meaning that can be used to an agency’s disadvantage.

The fact that the Supreme Court is probably going to rule in Kisor’s favor and overturn two precedents, Auer and Seminole Rock, has caused a lot of panties to be stained among the cheerleaders of the regulatory state.

Even if the fascists, supporters of the administrative state are correct, and agencies aren’t writing vague regulations, this doesn’t answer the core governmental question of why we want agencies to be able to create punitive regulations and why any sane person would want to prevent those regulations from being challenged in federal court. The argument that this could destroy the ability of agencies to decide how to interpret rules outside the Administrative Procedures Act seems to me to be a feature, not a bug. It should always be harder for agencies to create rules. Period.

If Kisor prevails, the process of agencies writing regulations regulating regulations will be dead. In order to administer regulations, agencies will have to engage in the rule-making process which will discourage a lot of nonsense. Then the fight can focus on making federal regulations no more deserving of deference than federal law.

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