From Volume 78, Number 5 (July 2005)
The pervasive influence of administrative governance is a defining feature of modern American life. Indeed, it is hard to find an aspect of daily life that is not regulated by one federal agency or another: the Department of Labor enforces labor laws; the Environmental Protection Agency (“EPA”) manages air and water quality; the Federal Energy Regulatory Commission (“FERC”) regulates electricity; the Food and Drug Administration (“FDA”) monitors the nation’s food supply and ensures the safety of its medicine; the Board of Governors of the Federal Reserve System (“the Fed”) supervises banking institutions; the Consumer Product Safety Commission (“CPSC”) regulates consumer products; and the Federal Communications Commission (“FCC”) oversees radio, television, satellite, and cable communications. With so many agencies minding America, one might ask: who is minding America’s agencies?
For one, courts have a significant supervisory role. They ensure that agency actions meet the Constitution’s due process requirements and individual liberty protections. Yet at the same time, courts give agencies leeway in interpreting the federal statutes they administer. This is because agencies have technical expertise, democratic credentials, and flexibility that courts do not. There is an inherent tension between these two opposing forces – a need for control and a need for deference. Courts must balance these forces whenever they review challenges to administrative action.