The appeal, to be argued next fall, has the potential to be not only one of the most important cases on the court's docket for its next term, but also one of the most important cases in decades about the allocation of authority in the modern administrative state.
32.
When a federal appeals court ruled two years ago that the Clean Air Act left too much discretion to the Environmental Protection Agency, it cast a cloud not only over an important environmental statute but over the modern administrative state, which is based on broad delegations from Congress to executive branch agencies.
33.
Federal agency proceedings, which are conducted by a special cadre of administrative law judges, share " strong similarities " with federal court proceedings, he said, adding that in any event the Constitution's framers, " who envisioned a limited federal government, could not have anticipated the vast growth of the administrative state ."
34.
As the surveillance state grows, Balkin argues, new civil liberties protections are necessary, just as they were necessary with the growth of the administrative state after the New Deal and the National Security State after World War II . The executive branch must be redesigned with internal checks and balances to police itself, to report on its activities, and to prevent abuse.
35.
In an interview Tuesday, Edward W . Warren, a lawyer here who won the benzene case 20 years ago and will argue for the business groups in this case, said his clients were not asking the court to adopt a " technocratic, lives-for-dollars " analysis of the Clean Air Act or to use the case as a vehicle to " transform the administrative state ."
36.
Even if the court remains unwilling to go so far as to dismantle the federal government as administrative state, overturn the string of precedents that extended the Bill of Rights from the federal government to the states, or sharply curb the scope of federal preemption of state law _ outcomes that still appear far-fetched if no longer completely inconceivable _ the polarities of the debate have shifted.
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