The last several years have been an exciting time to litigate constraints on administrative power. Long-neglected doctrines such as non-delegation (Gundy 2018), appointments (Lucia 2018), federal jurisdiction to hear challenges to administrative judging (Cochran and Axon 2022 term) and the Supreme Court’s recent insistence that major questions must be decided by Congress, not administrative agencies (WV v. EPA 2022), have revitalized the “parchment barriers” that the Founders explicitly erected to prevent an administrative state. The New Civil Liberties Alliance represented Ray Lucia on remand and later Michelle Cochran, whose en banc appeal finally broke through a six-circuit roadblock to create the circuit split that launched both Cochran and Axon to the Supreme Court. These challenges are turning around decades of judicial deference to administrative power. What is less well known is that a common thread of suppression of information and First Amendment rights has long accompanied and continues to work hand-in-hand with the expansion of administrative power. Restoring our civil liberties to criticize the government (sedition, anyone?) and rights to information about government power, including administrative adjudication, are key battlegrounds going forward.
Margaret A. Little
Senior Litigation Counsel, New Civil Liberties Alliance. NCLA is a non-profit, non-partisan law firm founded by Philip Hamburger to defend constitutional liberties against the Administrative State.