Elena Kagan and the Regulatory State

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Elena Kagan’s appointment underscores an important shift in American law toward legislation and regulatory law.

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Since President Obama’s first announcement of his nomination of Solicitor General Elena Kagan to the Supreme Court, many observers have noted that her confirmation would bring the number of women sitting on the nation’s highest Court to three, the most at any time in our nation’s history. Yet there is another historic milestone that her confirmation would achieve: she would become the third professor of administrative law to sit on the Court at any given time, joining Justices Breyer and Scalia who, like Kagan, specialized in administrative law during their previous academic careers.

Just as the appointment of a third woman to the Supreme Court speaks of the nation’s progress in gender equality, the fact that the Court could come to include three former full-time scholars of administrative law underscores a dramatic shift that has occurred in American government over the last half century. The United States has fully transitioned from a legal system that once was organized primarily around judge-made principles – the so-called common law – to one firmly anchored in laws passed by Congress and regulations adopted by numerous federal administrative agencies, from the Department of Agriculture to the Transportation Security Administration. Ever since the New Deal, the number and scope of administrative agencies has increased dramatically. Congress has delegated so many responsibilities to agencies that today they affect all segments of the economy and many parts of our daily lives.

As of late, virtually every major domestic crisis implicates administrative agencies. When Toyota cars do not work properly, the public asks why the National Highway Traffic Safety Administration failed to catch the problem earlier. When a Massey Energy mine explodes, it casts a spotlight not just on the mining industry but also on the effectiveness of the nation’s Mine Safety and Health Administration. The oil spill disaster in the Gulf raises obvious questions not only about British Petroleum but also about the work of the Minerals Management Service in the Department of Interior.

Despite these inevitable questions about regulatory failures, the nation continues to turn to administrative agencies to solve our most important public problems. The government responded to the September 11, 2001, attacks by creating a new cabinet-level agency – the Department of Homeland Security – through a reorganization of other administrative agencies. More recently, the historic health care reform legislation President Obama signed will be implemented through numerous policy decisions made not by Congress or the President but by administrators in the Department of Health and Human Services. And if Congress eventually passes financial reform legislation, that package will almost certainly include the establishment of a new consumer financial protection bureau empowered to police the credit practices of banks and other lenders.

The centrality of administrative agencies in American life makes the rules under which these entities function of great interest to society. These constitutional and statutory rules govern both the agencies and their employees as they go about making literally millions of consequential decisions every day. In this way, administrative law aspires to shape how unelected government officials do their work, making them more accountable, transparent, and ultimately more effective in advancing public welfare.

Administrative law also seeks to structure the relative powers of Congress, the President, and the courts in overseeing agencies. Can Presidents lawfully command the heads of administrative agencies do the bidding of the White House, especially when Congress has given the heads of the agencies (and not the President) direct responsibilities? How much deference should the judiciary give to administrative agencies’ own views about the meaning of the statutes they are supposed to implement? How closely should the courts scrutinize the underlying soundness of agency decisions as opposed to just testing them for basic compliance with the law?

The Supreme Court repeatedly confronts these and other vital administrative law questions and it will continue to do so with Elena Kagan on the bench. The Court’s answers to these questions will have much to say about what kind of government Americans can expect in the future.

Cary Coglianese

Cary Coglianese is the Edward B. Shils Professor of Law, Professor of Political Science, and Director of the Penn Program on Regulation at the University of Pennsylvania Law School. He is the founder of and faculty advisor to RegBlog.