Emory Law Journal


The modern administrative state looms larger than ever, and grows at an ever accelerating pace. U.S. government spending on federal regulatory activity in 2014 is estimated to have been $49.8 billion. Federal agencies now employ approximately 284,000 people, and the Code of Federal Regulations now weighs in at over 175,000 pages. Not everyone is pleased with these developments. Chief Justice Roberts, Justices Thomas, Alito, and the late Justice Scalia have expressed their displeasure, indeed their alarm, with consistency, clarity, and vigor. They warn that the rise of administrative agencies, and the attendant ascendance of doctrines of mandatory judicial deference to agency interpretations of federal law, signals no less than the end of our government¿s separation-of-powers structure, and our right to live our lives without fear of bureaucratic encroachment at every turn. As it turns out, however, the same alarm bell was sounded decades ago¿by Roscoe Pound. After outlining the uncannily similar attitude towards agencies expressed by Pound and our Supreme Court¿s conservative core, this Article probes how those views diverge.