The administrative state has never been more powerful. It regulates more and more of our daily conduct. Yet unless and until we see a dramatic reduction in the size of the federal government, it is difficult to envision a world without the Fourth Branch. As a result, the most pressing administrative law question is not really whether the administrative state is unconstitutional, but where do we go from here? How do We the People and the other branches of government act as effective checks on overgrown federal agencies?
For those in favor of limited federal government, and of putting lawmaking back in congressional hands, there is a silver lining to King v. Burwell, the case in which a divided Supreme Court upheld the Affordable Care Act. Remarkably, in determining that insurance purchased on either a Federal or State Exchange qualified for tax subsidies, the Supreme Court did not rely on the IRS’ interpretation of the ACA. Instead, the Court resurrected a defunct statutory interpretation doctrine—the “major questions” doctrine—and concluded that the question was too important to be delegated to an agency.
This was an astounding break with administrative law. It reverses entirely the usual rules of statutory interpretation. Instead of presuming that Congress intended to delegate any issue upon which a statute is silent, the Court found that, had Congress wished to delegate such an important question to the IRS, it would have done so expressly. This reversal of presumptions puts the primary responsibility for drafting law on important issues back in congressional hands–and is a very good first step in returning the administrative state to a more limited legislative role.