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Judicial Fortitude: The Last Chance to Rein in the Administrative State by Peter J. Wallison
bookishblond's review
I'm not going to rate this book because I don't think I objectively can. I don't agree with Wallison's premise or his argument (let's just say it's clear he's not a law professor) but his arguments helped me immensely in my research supporting Chevron (& arguing against Major Questions Doctrine).
That being said, who exactly is the target audience of this book? Not academics, I don’t think. Conservative thinkers and op-ed columnists, perhaps?
Wallison argues that the administrative state, as it exists today, is unconstitutionally legislating and making policy, against Congress’ express wishes (judging by what they wrote in statutory text). But his very best examples of this don’t hold up to scrutiny. Operation Chokehold, for example, was shut down. Interpretations under Title IX are, by his own admission, interpretations only, not rulemaking.
Explicitly rejecting New Deal reforms as bad is just… in bad faith. And, how can he ignore the value of consumer protection, food and drug, and other regulations? Just look at the airline industry. After federal regulations were rolled back, we had horrible, preventable accidents due to relaxed inspections and less oversight.
Now this is turning into more of a rant than a book review! But it is what it is.
That being said, who exactly is the target audience of this book? Not academics, I don’t think. Conservative thinkers and op-ed columnists, perhaps?
Wallison argues that the administrative state, as it exists today, is unconstitutionally legislating and making policy, against Congress’ express wishes (judging by what they wrote in statutory text). But his very best examples of this don’t hold up to scrutiny. Operation Chokehold, for example, was shut down. Interpretations under Title IX are, by his own admission, interpretations only, not rulemaking.
Explicitly rejecting New Deal reforms as bad is just… in bad faith. And, how can he ignore the value of consumer protection, food and drug, and other regulations? Just look at the airline industry. After federal regulations were rolled back, we had horrible, preventable accidents due to relaxed inspections and less oversight.
Now this is turning into more of a rant than a book review! But it is what it is.
holtfan's review
3.0
I am not sure who the intended audience for this book is because I thought it was me but I finished it and now I am a lot less sure. At the very least, this should have been preaching to the choir. But...the choir checked out three chapters ago and wants to go home now.
The book reminded me of the first time I heard about Chevron deference. A girl in the class ahead of me at law school was talking about her job and breezily threw out, “Of course, Chevron is our big issue…”
I nodded and pretended I knew what she was talking about because I wanted to seem cool, but for the life of me, I could not imagine what an oil and gas company had to do with administrative agencies.
Reading this book felt a bit like being back in that conversation, except this time I am intimately familiar with Chevron deference. Too familiar, perhaps. I couldn’t step back and appreciate the big picture provided by the author because the breezy tone kept distracting me.
Which, perhaps, best summarizes the audience problem. It makes too many assumptions to appeal to a general audience. At the same time, it feels too basic to appeal to those already familiar with the issues. It does not engage with potential critiques, so it won't really change any minds. And though it advocates strenuously to "bring back the nondelegation doctrine" and "get rid of Chevron deference," I don't think it leaves the average reader with any way to do anything about it.
Maybe it was written for judges?
The title ("LAST CHANCE TO REIN IN!") and focus on current examples (i.e. Kavanaugh appointment, Trump administration, etc.) make me think it was intended for a more general audience of lawyers. A rallying cry, if you will, to rein in the administrative state.
The thesis fits easily within conservative legal circles. The nondelegation doctrine has gained a lot of traction in recent years--and for good reasons. The administrative state is monstrous and generally unchecked. Congress seems incapable, or unwilling, to do anything. Chevron is just...a mess. And a huge due process violation. I fundamentally agree with the author's position on both doctrines.
But I don't feel like I gained any new insights or anything helpful from this book. It jumps around a lot, sending the reader off to "see points in Chapter 6" or "reference Chapter 2" or "read analysis in Chapter 5." It reads borderline partisan throughout (at least, rather anti-Democrat.) And it spends so much time ripping the administrative state to shreds that even I (who daily fights the administrative state!) was left longing for someone to take its side!
At the same time, the book does an amazing job with quotes. I highlighted several for future reference. On the upside, it actually made me look forward to block quotes which is rare. Downside: the well-worded quotes made it hard to focus on the relatively meh writing style of the rest of the book.
I've been hard on this book, perhaps more than it deserves, because I came in with such high expectations. It really does a good job with data and clearly illustrates many of the problems with the administrative state. It is a very readable overview in many respects. I just think it needed more fleshing out to be full useful to legal readers.
If you want to read about administrative law from an anti-administrative state perspective, I'd go with [a:Philip Hamburger|728364|Philip Hamburger|https://s.gr-assets.com/assets/nophoto/user/u_50x66-632230dc9882b4352d753eedf9396530.png] instead.
Pre-Review
My boss is geeking out about this one and usually what he geeks out about I also geek out about so...
The book reminded me of the first time I heard about Chevron deference. A girl in the class ahead of me at law school was talking about her job and breezily threw out, “Of course, Chevron is our big issue…”
I nodded and pretended I knew what she was talking about because I wanted to seem cool, but for the life of me, I could not imagine what an oil and gas company had to do with administrative agencies.
Reading this book felt a bit like being back in that conversation, except this time I am intimately familiar with Chevron deference. Too familiar, perhaps. I couldn’t step back and appreciate the big picture provided by the author because the breezy tone kept distracting me.
Which, perhaps, best summarizes the audience problem. It makes too many assumptions to appeal to a general audience. At the same time, it feels too basic to appeal to those already familiar with the issues. It does not engage with potential critiques, so it won't really change any minds. And though it advocates strenuously to "bring back the nondelegation doctrine" and "get rid of Chevron deference," I don't think it leaves the average reader with any way to do anything about it.
Maybe it was written for judges?
The title ("LAST CHANCE TO REIN IN!") and focus on current examples (i.e. Kavanaugh appointment, Trump administration, etc.) make me think it was intended for a more general audience of lawyers. A rallying cry, if you will, to rein in the administrative state.
The thesis fits easily within conservative legal circles. The nondelegation doctrine has gained a lot of traction in recent years--and for good reasons. The administrative state is monstrous and generally unchecked. Congress seems incapable, or unwilling, to do anything. Chevron is just...a mess. And a huge due process violation. I fundamentally agree with the author's position on both doctrines.
But I don't feel like I gained any new insights or anything helpful from this book. It jumps around a lot, sending the reader off to "see points in Chapter 6" or "reference Chapter 2" or "read analysis in Chapter 5." It reads borderline partisan throughout (at least, rather anti-Democrat.) And it spends so much time ripping the administrative state to shreds that even I (who daily fights the administrative state!) was left longing for someone to take its side!
At the same time, the book does an amazing job with quotes. I highlighted several for future reference. On the upside, it actually made me look forward to block quotes which is rare. Downside: the well-worded quotes made it hard to focus on the relatively meh writing style of the rest of the book.
I've been hard on this book, perhaps more than it deserves, because I came in with such high expectations. It really does a good job with data and clearly illustrates many of the problems with the administrative state. It is a very readable overview in many respects. I just think it needed more fleshing out to be full useful to legal readers.
If you want to read about administrative law from an anti-administrative state perspective, I'd go with [a:Philip Hamburger|728364|Philip Hamburger|https://s.gr-assets.com/assets/nophoto/user/u_50x66-632230dc9882b4352d753eedf9396530.png] instead.
Pre-Review
My boss is geeking out about this one and usually what he geeks out about I also geek out about so...
More...