Topic: Administrative Law Issues
Senator: DeWine
Date: SEPTEMBER 14, 2005
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DEWINE: Let me ask you, moving to administrative law issues, if I could. As you know in the 18th and 19th centuries, we really did not have the governmental agencies that have such a profound influence, for better or worse, on the daily lives of Americans. Today, administrative agencies set workplace safety rules, establish environmental regulations, lay down traffic safety standards, just to name a few things. As far as I know, there's no specific article in the Constitution dedicated to the administrative state we live in today. In your view, what is there in the text or history of the Constitution that supports the growth of this administrative state that we live in? Is the growth of the administrative state an example of the Constitution being amended simply out of necessity or is the administrative state consistent with the Constitution as drafted by our founding fathers? How do you get to where we are from a constitutional point of view?
ROBERTS: Well, you know, we all, of course, begin in high school civics, with the notion of three branches of government, the executive, the legislative and the judicial. And we study that. And then, only occasionally do people look at the real world and say: Well, what is this agency? What is that? Is that legislative? Or is that judicial? Or is that executive? And of course, the answer is, well, it's a little bit of each. It's exercising power delegated by Congress. It's executing it in a particular way. It's issuing regulations that have the force and effect of law. And quite often it's adjudicating particular disputes. The activities of the administrative agencies are, of course, the bulk of what judges on the Court of Appeals for the D.C. Circuit do (inaudible) of administrative law that have recognized the legitimacy of these agencies and sought to ensure that their exercise of authority is consistent with constitutional provisions, by basically -- I mean, I know the issue can seem arcane to many people, but he fundamentals of administrative law really go back to the basic principles of justice: Is someone being given an opportunity to be heard?
Is someone being treated fairly? Is someone who's making a decision, doing it for a rational reason or an arbitrary reason? These are the same basic principles that have animated the common law system since the time of Lord Cook -- and they're being applied here as well. And the objection is often: This agency made a decision without adequately hearing our concerns. Or this agency made an adjudicatory decision without hearing the record evidence. Or they did not explain. That's the basic requirement of administrative law: explain your decision. That's the limitation on arbitrariness. And the agency didn't explain why it's doing these. The notion that, even in these arcane areas, our legal system insists upon the observance of these basic requirements of -- I don't want to say due process; that's a technical term -- but that's the principle that is being applied. That goes a long way to explaining how these agencies have been accepted into the constitutional system, because they've been required under principles of administrative law, to comply with these basic precepts of procedural regularity.
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