This is the third in a series of posts about my new book, Competitive Field: How the President Understands the Limits of Power. The last post focuses on the President’s control over the executive branch. Today’s post focuses on the President’s control over domestic policy.
At least in the United States, almost all controversial presidential actions are taken under the powers vested in Congress by Congress. A hotly debated question is how much prudence Congress can give to the executive branch in enforcing the law. This is sometimes interpreted in terms of representation to “faceless bureaucrats” but it is something of a red herring. The major policy decisions of today’s federal government are closely monitored by the White House. When the Obama administration enacted ambitious regulations to combat climate change, key decisions were not made by anonymous government officials. The White House was under strict control. And that was equally true when the Trump administration withdrew the same rules. Ninety-nine percent of the time, when we are talking about major policy decisions, we are effectively talking about delegations to the President. Sometimes independent firms make big policy decisions about net neutrality, such as the FCC’s shaky policies. Nevertheless, decisions are made by individuals who are appointed by the president and confirmed by the Senate, such as cabinet officials and federal judges.
There is a general agreement that Congress cannot simply ask the President or any body to make any rules on any matter that is appropriate. The problem is trying to draw a line between the type and the formulation of the policy that is inherent in law enforcement. Throughout the history of America, the Supreme Court has found only two chances to declare a federal law unconstitutional because it has given too much power to Congress to legislate. There is a strong argument on the part of the Supreme Court that this judicial inaction should be abandoned, and that Congress has given too much discretion to the President and his appointees.
The formulation of major new regulations is a painfully slow process, requiring large amounts of data collection, thorough analysis and often multiple rounds of judicial review and reconsideration. The Congress is also much less free to relinquish its authority than many believe. It’s true that some of the older rules are quite broad, but modern rules like the Clean Air Act can give the agency hundreds of pages with detailed instructions. However, it goes without saying that they do not need to be judged by the agency. For example, the Pollution Constitution requires frequent EPAs to determine the best available technology for any type of pollution control. For this resolution it is necessary to consider engineering issues, costs and the benefits of reducing pollution.
Proponents of a strong non-delegation doctrine claim that the basic idea of the constitution limits the kind of authority that can be given to the executive branch. I’m willing to believe that the framers thought the delegation had limits. It is more difficult to understand where they may be limiting, as Congress had some broad representation of authority with the formation of the government.
Other scholars have written much deeper about history. JD Mortensen and Nicholas Bagley have received some interestingly elaborate representations. Ilan Warman has tried to explain these broad delegates by falling into the system of exceptions. Nicolas Perillo points to an extraordinarily broad representation to the tax commissioner accused of valuing the property.
My own favorite first patent law. Defining IP rights is certainly a big policy decision. Yet a 1790 law leaves this policy decision up to the executive branch. The original patent constitution for the issuance of a patent was as prudent as you can imagine: [was] Useful and important enough. “Based on all this history, I am not prepared to say that the framers thought that the delegation had no constitutional limits, but it is clear that they were ready to face some broad delegates.
Either way, it seems clear that there are currently at least five judges who will think we need a tougher standard for congressional representatives. It remains quite unclear, but what that value will be. Some observers, at least, are hoping for a standard that would seem to throw a wide chunk of the current regulatory state.
A good test case is provided by the Federal Air Pollution Control Lynchpin. Section 109 of the Clean Air Act directs the EPA to determine air quality based on public health. The standards are supposed to provide adequate safety margins for public health protection. A lot of technical evidence needs to be considered to determine the health impact of determining quality. How much security margin it has to pay and at what stage it will affect which person needs to be judged on the issue of public health. Justice Scalia wrote an opinion for the court that the provision is in force against the non-representational challenge.
How will the current court decide this case? Congress has made a very important and controversial policy decision: only health, not cost, should be considered in setting standards. And most of the agency’s work involves efficiency rather than policy decisions. On the other hand, of course there are calls for decision making, and even small changes in standards can have big economic implications. Preliminary sources on the future direction of the court are available with the consent of Justice Gorsuch and with the consent of Justice Kavanagh. It is not clear how their tests can be applied to this provision.
It is certainly conceivable that a newly stimulated non-delegation doctrine would repeal that provision and with it about two-thirds of the Clean Air Act. It seems impossible to me that the Supreme Court would do something so radical and unstable. It’s also not clear to me how Justice Gorsuch, who led the illegality, will come out. The answer may depend on whether he considers the risk assessment to be a genuine assessment or a policy decision. Justice Kavanagh has his own choices, but so far he has shown no signs of the kind of radical stimulus needed to invalidate everything from modern environmental law to securities law. And no one knows what Justice Barrett thinks.
The non-delegation theory emphasizes that in an ideal world, government regulatory policy will not be affected by presidential elections. All important policy decisions were made by Congress, with the executive branch having nothing to do but detail. This may seem ideal for those who do not like any regulation and hope that the congressional gridlock will guarantee that result. It is not clear to me that this will be the result, since the public demand for control will not go away. Decisions such as setting air quality standards in the hands of Congress also seem unfortunate in other ways, compared to our deliberate administrative process today. This will reduce the role of science and economics in regulatory decisions. It is not even clear that it will decide to be more politically accountable. We know who we will blame when the Biden administration or the Trump administration makes big changes in regulatory policy. Who do you blame for the vague provisions in the thousand-page universal bill? The delegation has its advantages.
This does not mean that we should be concerned about executive discretion and how it is implemented. But constitutional law is a vague instrument for prudent control and channeling. In my view, we have more serviceable tools to ensure responsible decision making in administrative law and statutory interpretation.
Tomorrow, I will move away from domestic policy and look at the President’s war power.