What We’re Reading: Judicial Fortitude by Peter J. Wallison

Title: Judicial Fortitude: The Last Chance to Rein In the Administrative State
By: Peter J. Wallison
Published: October 16th 2018 by Encounter Books
Pages: 216

Review written by Amy Buchmeyer, Counsel and Director of Development

In this book, Peter J. Wallison argues that the administrative agencies of the federal executive branch have gradually taken over the legislative role of Congress, resulting in the enormous administrative state we know today. The federal judiciary bears the major responsibility for this development because it has failed to carry out its primary constitutional responsibility: enforcing the constitutional separation of powers. As a result, agencies have been allowed to amass power relatively unchecked.

Wallison’s solution to the judiciary’s defection? Bring back the nondelegation doctrine and end Chevron deference.

Wisconsin ended its own version of Chevron deference in 2018 and has taken significant steps to curb agency power grabs with Act 21’s explicit authority requirement, so in many ways, this book is an eye-opening reminder of the exhaustive power agencies wield without proper checks.

For a short book, it provides a fairly meticulous overview of the rise of the administrative state at the federal level, the meaning of separation of powers, the impact of Chevron deference, and the importance of the nondelegation doctrine. If looking for an overview, this is a good place to start.

I have two critiques, though. First, although less than two years old, the book already risks dating itself with references to policy choices in the Trump administrations and statements about “if” Justice Kavanaugh gets voted onto the Supreme Court. Since Justice Kavanaugh did make it to the Supreme Court, the analysis remains valid. But policy changes fast in administrative law and I was already left wishing for an “update” on some of the issues discussed.

Second, this book lacks much analysis of counter-arguments. It is designed to be more of a rallying cry than an in-depth discussion of nondelegation and Chevron deference. Some good counter-arguments would have helped make it feel less dated and more available for discussion and debate.

But bottom line? It was an interesting read with great quotes and readily accessible statistics.