Kelly Sloan

Kelly Sloan

A great deal has been written and said about the apparently interminable expansion of the administrative state. There has been some limited and relative success in recent years of at least applying an emergency brake to it at the federal level, but it is easy to overlook the extent to which at the state level it continues to metastasize unabated, and, increasingly, the role of the courts in securing its immortality.

In what ought to go down as one of the most absurd decisions in American juridical history (and there is a lot of competition for that title) a state district court judge last week dismissed the Colorado Auto Dealers Association lawsuit over the imposition of the California Low Emission Vehicle regulation — not on any of the merits of their case, but through claiming the association, which represents the car dealers who will be most directly impacted by the rule, did not have standing to file the lawsuit.

Think about that for a minute. The state promulgates a rule (not through the legislative process, mind you, but administratively via executive fiat) which imposes costs on a specific and particular segment of the economy. That segment gathers their data and evidence of the financial hardship that rule will bring, and follows the only method of redress they have, which is to exercise their rights to press their case in court against the agency that developed and imposed the punishing rule. They are then told, not that their case does not have merit, but that they have no standing to be able to even bring it forward.

This sort of begs the question, if financially impacted parties do not have standing to file a redress of economic grievance, who does?

The implications of this are rather ominous — essentially the court has affirmed that the government has what amounts to a free hand to impose any rule or regulation it wants, bypassing the legislature, immune from any recourse by those impacted by it.

This oughtn’t come as any particular surprise; the main accomplishment of the legislative branch, both at the federal and state levels, over the past several decades has been to hemorrhage more and more of its authority to the executive and judiciary. This is primarily a function of impatience — the painstaking and incremental pace of the legislative process may be conducive to good government, but certainly not to effecting a Jacobitical program of sweeping social and economic change before the sun comes up.

The modern administrative state, where the bureaucratic labyrinth of commissions and agencies wield far more governing authority than the mere legislature, was born out of this impatience, and its steady expansion feeds off it. The one respite effected party’s (usually some segment of private industry that happened to find itself fallen out of favor with the sitting executive) could cling to, once governing decisions were relegated by the legislative branch to the more officious executive, was administrative law. The rules may have bypassed the law-making process, but at least there was an established process to petition through the judiciary for review and potential relief if one found oneself encumbered by the rule.

The court has now taken what could potentially be viewed as the final necessary step to remove any remaining public interference with governmental action by effectively eliminating the legal ability of impacted parties to challenge an imposed rule or regulation. In other words, the court has seen fit to bypass an impacted entity’s only remaining effective involvement in the rule-making process.

To be sure, there are steps to be followed in the promulgation phase, which include hearings, public comment and the like, but these are largely perfunctory; if there was much appetite for subjecting a proposed rule or policy to public debate and examination it would go through the legislative process. If the head of the executive branch (President, Governor) wants a rule enacted, chances are high that it will be enacted. That is what made the legal recourse option so important, and why this particular decision is troubling.

This is not, or should not be, a particularly partisan matter, beyond the generally accepted distinctions — that concern over the accumulation of authority in the executive is traditionally terrain occupied by the GOP, the Democratic Party generally more inclined towards favoring the functionality of centralized government. But Democrats might be wise to consider how a decision like this could ricochet should the states' political pendulum ever swing back to starboard, a possibility suggested by history.

Kelly Sloan is a political and public affairs consultant and a recovering journalist based in Denver.

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