“The Take Care Act” -- James Wilson Fellow Alumnus Joel Nolette ’18

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By The James Wilson Institute • Posted on Aug 30 2019

In a piece for the Federalist Society titled “The Take Care Act”, Joel Nolette praises a new Senate bill aimed at curbing the growth of the administrative state. According to Nolette, the Supreme Court embraced wholesale the technocracy of the New Deal Left by stripping the President of removal power in its landmark Humphrey’s Executor v. United States (1935) decision. Rejecting Chief Justice Taft’s more restrained reasoning in Myers v. United States (1926), the Hughes Court issued license for Congress to unload its obligations onto an unelected class of experts without ceding power to the White House—effectively creating an informal fourth branch of government. Nolette observes the troubling downstream effects of the Court’s Humphrey’s Executor decision: insulated from popular accountability, the administrative state has gradually metastasized into a red tape behemoth that operates beyond the control of elected officials. In a measure designed to restore accountability to the Executive Branch, Senator Mike Lee (R-UT) recently introduced The Take Care Act. If signed into law, Nolette explains, the bill would return principal officer removal powers to the President, reasserting the basic axiom that governing authority in the United States resides in the people through their democratically-elected representatives. Some excerpts from the piece. “Rejecting Myers’s thorough analysis and reasoning as ‘dicta’ and ‘expressions . . . beyond the point involved,’ the Humphrey’s ExecutorCourt swallowed whole the Progressive and New Deal Era belief that having ‘a body of experts’ making and implementing policy ‘free from ‘political domination or control’' was of paramount importance, overriding even the need for meaningful political accountability.” “Coupled with the accretion and concentration of federal power in the Executive Branch over time, the administrative state today consists of a dizzying array of bureaucracies making and enforcing policies while largely insulated from meaningful oversight.” “The ‘Take Care Act’ takes seriously Hamilton’s recognition in Federalist 70 that ‘the unity of the executive’ is ‘one of the best of the distinguishing features of our constitution.’ This restructuring, to be sure, would not be a panacea for the constitutionally-infirm status quo in Washington. Much else needs to be done to restore constitutional order, but the reform Senator Lee has proposed in the ‘Take Care Act’ is a critical step to that end.” Read the whole essay here.