DigitalCommons@University of Nebraska - Lincoln - Sandi Zellmer: The Devil, the Details, and the Dawn of the 21st-Century Administrative State: Beyond the New Deal

Law, College of

College of Law, Faculty Publications

Title

The Devil, the Details, and the Dawn of the 21st-Century Administrative State: Beyond the New Deal

Authors

Sandi Zellmer, University of Nebraska Lincoln

Document Type

Article

Date of this Version

2000

Comments

Abstract

More than half a century has passed since the New Deal, the era known for ushering in the modem administrative state, where broad-sweeping regulatory powers were delegated to over a dozen new executive agencies pursuant to a raft of social legislation. Until the later years of the New Deal, courts were highly suspicious of socially progressive legislation, and, for that matter, any legislation that upset common law systems supporting private property rights and freedom of contract. Regulatory enactments were especially vulnerable to invalidation for delegating policy-making authority to an executive agency or other non-legislative entity. Such delegations were considered a constitutional offense under the nondelegation principle of separation of powers.

Yet just last year, the U. S. Court of Appeals for the D .C. Circuit, a court widely recognized as the veritable hub of administrative law jurisprudence, opened a new chapter in the post-New Deal era by breathing life into the nondelegation doctrine. In American Trucking Assns v. EPA, the court held that the Environmental Protection Agency ("EPA") had overstepped its constitutional boundaries and usurped legislative prerogatives in issuing national ambient air quality standards ("NAAQS") for ground-level ozone and particulate matter under the Clean Air Act.' According to the court, the decision was unconstrained by any "intelligible principle," even though the EPA had considered a full range of data regarding the air quality level "requisite to protect public health" with an "adequate margin of safety," as directed by this detailed and comprehensive statute. At the heart of the American Trucking decision lies the court's belief that, absent clear congressional parameters, an executive agency like the EPA would have unbridled power to send entire industries hurtling over the brink of economic ruin. Although the court couched its decision in terms of a search for intelligible principles, upon closer scrutiny, the opinion seems to have little to do with a lack of legislative or administrative standards.

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