So far in my series about David J. Barron (Part 1<\/a>, Part 2<\/a>, Part 3<\/a>, and Part 4<\/a>), President Obama\u2019s pick for the First Circuit Court of Appeals, I have emphasized that Barron\u2019s judicial philosophy would incorporate an agenda for using constitutional law to accomplish political objectives which he calls \u201cprogressive constitutionalism.\u201d This agenda includes the deliberate inversion<\/a> of the Constitution\u2019s federal scheme.<\/p>\n\nThis post addresses another serious defect in Barron\u2019s view of the Constitution: his belief that Congress can simply allow the Executive Branch the broad ability to \u201cwaive\u201d inconvenient laws. To his credit, Barron doesn\u2019t endorse President Obama\u2019s apparent view that the president can refuse to enforce duly\u00a0enacted laws on his own constitutional authority. Instead, Barron proposes that Congress do something almost as bad: authorize<\/em> the President to refuse to enforce duly\u00a0enacted laws. As Barron describes, this would take the following form: \u201cCongress passes a statute telling an agency to accomplish, among other things, X, and Congress also empowers the agency to waive part or all of X.\u201d<\/p>\n\nHe calls that \u201cBig Waiver<\/a>\u201d. The purpose of \u201cBig Waiver\u201d is, in Barron\u2019s view, to allow administrative agencies to \u201cdisplace a regulatory baseline that Congress itself has established.\u201d In other words, Barron wants Congress to let agencies rewrite congressionally\u00a0enacted policies.<\/p>\n\nThis sort of waiver, especially the broad kind that Barron favors, flies in the face of the non-delegation doctrine, a separation-of-powers rule requiring that laws announce an \u201cintelligible principle.\u201d As Justice Scalia explained the non-delegation doctrine in Whitman v. American Trucking Ass\u2019ns<\/em><\/a>, the question is whether a statute has delegated legislative power to the agency, which would be forbidden since the Constitution vests legislative power solely in Congress. Congress can avoid a wholesale delegation of its legislative power by setting out an \u201cintelligible principle\u201d for the Executive to follow rather than giving an agency free rein to add (or, here, remove) content to congressionally\u00a0enacted laws.<\/p>\n\nAffirming Big Waiver\u2019s constitutionality by weakening the non-delegation doctrine would, in Barron\u2019s view, offer benefits that he sees in several of the Obama Administration\u2019s key policy priorities. For instance, the Administration aggressively used provisions of the No Child Left Behind legislation to grant waivers to 33 states and Washington, D.C., allowing these states to receive federal funds but ignore congressional policy. Barron also lauds the Affordable Care Act\u2019s waiver provisions,which allow states to be exempted from the ACA\u2019s elements by proposing their own health-care schemes, and the Secretary of Health and Human Services\u2019 move to waive work requirements as a condition of receiving welfare funds. (On the latter point, Barron delicately describes HHS\u2019s statutory interpretation as \u201cby no means self-evident.\u201d)<\/p>\n\nBarron mentions several more examples, but the sticking point in all of these \u201cBig Waiver\u201d provisions is this: granting the waivers lies entirely within the discretion of the relevant department<\/em>. The statutes authorizing waivers amount to vast delegations of power to the executive branch, not only to act, but not to act, and to specify the conditions under which waiver will be granted. The power to declare the law not to be the law is effectively a new form of delegation.<\/p>\n\nAnd Barron is all for it. He argues that Big Waiver makes the government better able to do a variety of things, including \u201cestablish positive rights through direct welfare provision.\u201d He considers it an advantage to allow the federal government to treat parties differently by allowing for \u201cnonuniform, easily revised problem-solving efforts.\u201d Most of all, Barron thinks it is the perfect tool for avoiding \u201clegislative gridlock\u201d (which the Framers would have called \u201cchecks\u201d and \u201cbalances\u201d). He even endorses the outrageous idea that Congress should vote for legislation in bad faith:<\/p>\n\n\nLegislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President\u2019s interests will be protected (if at a high cost) through the safety valve that waiver provisions afford. And legislators of the opposite party can stomach the delegation of authority to the executive precisely because they can spell out in the statute their own preferred regulatory approach, thereby saddling the President with the decision to displace it. In this way, legislators can claim credit for having solved a problem, while either downplaying the significance of the fact that the supposed \u201csolution\u201d is actually far from stable or highlighting to their favored constituents in relatively discrete tones the instability of those features of the framework that cause concern to those same constituents.<\/p>\n<\/blockquote>\n\nIn essence, Barron is cynically proposing that members of Congress vote for bad policy because there\u2019s an escape hatch somewhere, to be exercised someday. Moreover, he proposes that this sort of power-driven log-rolling could convince the executive branch to agree to legislation it has no intention of executing: \u201cFurther, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.\u201d The key, from Barron\u2019s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, \u201cAn effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.\u201d<\/p>\n\nEvaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges \u201cshould defer to Congress\u2019s judgment as to when the technique is \u2018necessary and proper\u2019 in all but very extreme cases,\u201d says that the question of whether an agency has waiver power should be decided \u201cwithout deference to the agency\u2019s judgment,\u201d but then also says that the precise range of the agency\u2019s waiver power and the conditions to be placed on it should receive \u201csubstantial deference.\u201d There\u2019s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to \u201cprogressive constitutionalists\u201d who might judicially review the waivers.<\/p>\n\nThere\u2019s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron\u2019s endorsement of Big Waiver is not whether Congress is, as Barron says, \u201cstuck with a prior legislative judgment it no longer believes is wise.\u201d That is an easy question, at least under the Constitution: Congress can repeal the law. But Barron would have Congress totally abdicate its Constitutional role in the amending and repealing of laws and further asks federal judges to concur in that abdication. In sum, it seems clear that Barron fundamentally misunderstands the role that democratic accountability has to play in this republican democracy.<\/p>\n\n\n\t\t\t\t\t\n\t\t\t\t<\/div>\n\n\t\t\t\t
This post addresses another serious defect in Barron\u2019s view of the Constitution: his belief that Congress can simply allow the Executive Branch the broad ability to \u201cwaive\u201d inconvenient laws. To his credit, Barron doesn\u2019t endorse President Obama\u2019s apparent view that the president can refuse to enforce duly\u00a0enacted laws on his own constitutional authority. Instead, Barron proposes that Congress do something almost as bad: authorize<\/em> the President to refuse to enforce duly\u00a0enacted laws. As Barron describes, this would take the following form: \u201cCongress passes a statute telling an agency to accomplish, among other things, X, and Congress also empowers the agency to waive part or all of X.\u201d<\/p>\n\nHe calls that \u201cBig Waiver<\/a>\u201d. The purpose of \u201cBig Waiver\u201d is, in Barron\u2019s view, to allow administrative agencies to \u201cdisplace a regulatory baseline that Congress itself has established.\u201d In other words, Barron wants Congress to let agencies rewrite congressionally\u00a0enacted policies.<\/p>\n\nThis sort of waiver, especially the broad kind that Barron favors, flies in the face of the non-delegation doctrine, a separation-of-powers rule requiring that laws announce an \u201cintelligible principle.\u201d As Justice Scalia explained the non-delegation doctrine in Whitman v. American Trucking Ass\u2019ns<\/em><\/a>, the question is whether a statute has delegated legislative power to the agency, which would be forbidden since the Constitution vests legislative power solely in Congress. Congress can avoid a wholesale delegation of its legislative power by setting out an \u201cintelligible principle\u201d for the Executive to follow rather than giving an agency free rein to add (or, here, remove) content to congressionally\u00a0enacted laws.<\/p>\n\nAffirming Big Waiver\u2019s constitutionality by weakening the non-delegation doctrine would, in Barron\u2019s view, offer benefits that he sees in several of the Obama Administration\u2019s key policy priorities. For instance, the Administration aggressively used provisions of the No Child Left Behind legislation to grant waivers to 33 states and Washington, D.C., allowing these states to receive federal funds but ignore congressional policy. Barron also lauds the Affordable Care Act\u2019s waiver provisions,which allow states to be exempted from the ACA\u2019s elements by proposing their own health-care schemes, and the Secretary of Health and Human Services\u2019 move to waive work requirements as a condition of receiving welfare funds. (On the latter point, Barron delicately describes HHS\u2019s statutory interpretation as \u201cby no means self-evident.\u201d)<\/p>\n\nBarron mentions several more examples, but the sticking point in all of these \u201cBig Waiver\u201d provisions is this: granting the waivers lies entirely within the discretion of the relevant department<\/em>. The statutes authorizing waivers amount to vast delegations of power to the executive branch, not only to act, but not to act, and to specify the conditions under which waiver will be granted. The power to declare the law not to be the law is effectively a new form of delegation.<\/p>\n\nAnd Barron is all for it. He argues that Big Waiver makes the government better able to do a variety of things, including \u201cestablish positive rights through direct welfare provision.\u201d He considers it an advantage to allow the federal government to treat parties differently by allowing for \u201cnonuniform, easily revised problem-solving efforts.\u201d Most of all, Barron thinks it is the perfect tool for avoiding \u201clegislative gridlock\u201d (which the Framers would have called \u201cchecks\u201d and \u201cbalances\u201d). He even endorses the outrageous idea that Congress should vote for legislation in bad faith:<\/p>\n\n\nLegislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President\u2019s interests will be protected (if at a high cost) through the safety valve that waiver provisions afford. And legislators of the opposite party can stomach the delegation of authority to the executive precisely because they can spell out in the statute their own preferred regulatory approach, thereby saddling the President with the decision to displace it. In this way, legislators can claim credit for having solved a problem, while either downplaying the significance of the fact that the supposed \u201csolution\u201d is actually far from stable or highlighting to their favored constituents in relatively discrete tones the instability of those features of the framework that cause concern to those same constituents.<\/p>\n<\/blockquote>\n\nIn essence, Barron is cynically proposing that members of Congress vote for bad policy because there\u2019s an escape hatch somewhere, to be exercised someday. Moreover, he proposes that this sort of power-driven log-rolling could convince the executive branch to agree to legislation it has no intention of executing: \u201cFurther, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.\u201d The key, from Barron\u2019s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, \u201cAn effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.\u201d<\/p>\n\nEvaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges \u201cshould defer to Congress\u2019s judgment as to when the technique is \u2018necessary and proper\u2019 in all but very extreme cases,\u201d says that the question of whether an agency has waiver power should be decided \u201cwithout deference to the agency\u2019s judgment,\u201d but then also says that the precise range of the agency\u2019s waiver power and the conditions to be placed on it should receive \u201csubstantial deference.\u201d There\u2019s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to \u201cprogressive constitutionalists\u201d who might judicially review the waivers.<\/p>\n\nThere\u2019s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron\u2019s endorsement of Big Waiver is not whether Congress is, as Barron says, \u201cstuck with a prior legislative judgment it no longer believes is wise.\u201d That is an easy question, at least under the Constitution: Congress can repeal the law. But Barron would have Congress totally abdicate its Constitutional role in the amending and repealing of laws and further asks federal judges to concur in that abdication. In sum, it seems clear that Barron fundamentally misunderstands the role that democratic accountability has to play in this republican democracy.<\/p>\n\n\n\t\t\t\t\t\n\t\t\t\t<\/div>\n\n\t\t\t\t
He calls that \u201cBig Waiver<\/a>\u201d. The purpose of \u201cBig Waiver\u201d is, in Barron\u2019s view, to allow administrative agencies to \u201cdisplace a regulatory baseline that Congress itself has established.\u201d In other words, Barron wants Congress to let agencies rewrite congressionally\u00a0enacted policies.<\/p>\n\nThis sort of waiver, especially the broad kind that Barron favors, flies in the face of the non-delegation doctrine, a separation-of-powers rule requiring that laws announce an \u201cintelligible principle.\u201d As Justice Scalia explained the non-delegation doctrine in Whitman v. American Trucking Ass\u2019ns<\/em><\/a>, the question is whether a statute has delegated legislative power to the agency, which would be forbidden since the Constitution vests legislative power solely in Congress. Congress can avoid a wholesale delegation of its legislative power by setting out an \u201cintelligible principle\u201d for the Executive to follow rather than giving an agency free rein to add (or, here, remove) content to congressionally\u00a0enacted laws.<\/p>\n\nAffirming Big Waiver\u2019s constitutionality by weakening the non-delegation doctrine would, in Barron\u2019s view, offer benefits that he sees in several of the Obama Administration\u2019s key policy priorities. For instance, the Administration aggressively used provisions of the No Child Left Behind legislation to grant waivers to 33 states and Washington, D.C., allowing these states to receive federal funds but ignore congressional policy. Barron also lauds the Affordable Care Act\u2019s waiver provisions,which allow states to be exempted from the ACA\u2019s elements by proposing their own health-care schemes, and the Secretary of Health and Human Services\u2019 move to waive work requirements as a condition of receiving welfare funds. (On the latter point, Barron delicately describes HHS\u2019s statutory interpretation as \u201cby no means self-evident.\u201d)<\/p>\n\nBarron mentions several more examples, but the sticking point in all of these \u201cBig Waiver\u201d provisions is this: granting the waivers lies entirely within the discretion of the relevant department<\/em>. The statutes authorizing waivers amount to vast delegations of power to the executive branch, not only to act, but not to act, and to specify the conditions under which waiver will be granted. The power to declare the law not to be the law is effectively a new form of delegation.<\/p>\n\nAnd Barron is all for it. He argues that Big Waiver makes the government better able to do a variety of things, including \u201cestablish positive rights through direct welfare provision.\u201d He considers it an advantage to allow the federal government to treat parties differently by allowing for \u201cnonuniform, easily revised problem-solving efforts.\u201d Most of all, Barron thinks it is the perfect tool for avoiding \u201clegislative gridlock\u201d (which the Framers would have called \u201cchecks\u201d and \u201cbalances\u201d). He even endorses the outrageous idea that Congress should vote for legislation in bad faith:<\/p>\n\n\nLegislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President\u2019s interests will be protected (if at a high cost) through the safety valve that waiver provisions afford. And legislators of the opposite party can stomach the delegation of authority to the executive precisely because they can spell out in the statute their own preferred regulatory approach, thereby saddling the President with the decision to displace it. In this way, legislators can claim credit for having solved a problem, while either downplaying the significance of the fact that the supposed \u201csolution\u201d is actually far from stable or highlighting to their favored constituents in relatively discrete tones the instability of those features of the framework that cause concern to those same constituents.<\/p>\n<\/blockquote>\n\nIn essence, Barron is cynically proposing that members of Congress vote for bad policy because there\u2019s an escape hatch somewhere, to be exercised someday. Moreover, he proposes that this sort of power-driven log-rolling could convince the executive branch to agree to legislation it has no intention of executing: \u201cFurther, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.\u201d The key, from Barron\u2019s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, \u201cAn effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.\u201d<\/p>\n\nEvaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges \u201cshould defer to Congress\u2019s judgment as to when the technique is \u2018necessary and proper\u2019 in all but very extreme cases,\u201d says that the question of whether an agency has waiver power should be decided \u201cwithout deference to the agency\u2019s judgment,\u201d but then also says that the precise range of the agency\u2019s waiver power and the conditions to be placed on it should receive \u201csubstantial deference.\u201d There\u2019s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to \u201cprogressive constitutionalists\u201d who might judicially review the waivers.<\/p>\n\nThere\u2019s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron\u2019s endorsement of Big Waiver is not whether Congress is, as Barron says, \u201cstuck with a prior legislative judgment it no longer believes is wise.\u201d That is an easy question, at least under the Constitution: Congress can repeal the law. But Barron would have Congress totally abdicate its Constitutional role in the amending and repealing of laws and further asks federal judges to concur in that abdication. In sum, it seems clear that Barron fundamentally misunderstands the role that democratic accountability has to play in this republican democracy.<\/p>\n\n\n\t\t\t\t\t\n\t\t\t\t<\/div>\n\n\t\t\t\t
This sort of waiver, especially the broad kind that Barron favors, flies in the face of the non-delegation doctrine, a separation-of-powers rule requiring that laws announce an \u201cintelligible principle.\u201d As Justice Scalia explained the non-delegation doctrine in Whitman v. American Trucking Ass\u2019ns<\/em><\/a>, the question is whether a statute has delegated legislative power to the agency, which would be forbidden since the Constitution vests legislative power solely in Congress. Congress can avoid a wholesale delegation of its legislative power by setting out an \u201cintelligible principle\u201d for the Executive to follow rather than giving an agency free rein to add (or, here, remove) content to congressionally\u00a0enacted laws.<\/p>\n\nAffirming Big Waiver\u2019s constitutionality by weakening the non-delegation doctrine would, in Barron\u2019s view, offer benefits that he sees in several of the Obama Administration\u2019s key policy priorities. For instance, the Administration aggressively used provisions of the No Child Left Behind legislation to grant waivers to 33 states and Washington, D.C., allowing these states to receive federal funds but ignore congressional policy. Barron also lauds the Affordable Care Act\u2019s waiver provisions,which allow states to be exempted from the ACA\u2019s elements by proposing their own health-care schemes, and the Secretary of Health and Human Services\u2019 move to waive work requirements as a condition of receiving welfare funds. (On the latter point, Barron delicately describes HHS\u2019s statutory interpretation as \u201cby no means self-evident.\u201d)<\/p>\n\nBarron mentions several more examples, but the sticking point in all of these \u201cBig Waiver\u201d provisions is this: granting the waivers lies entirely within the discretion of the relevant department<\/em>. The statutes authorizing waivers amount to vast delegations of power to the executive branch, not only to act, but not to act, and to specify the conditions under which waiver will be granted. The power to declare the law not to be the law is effectively a new form of delegation.<\/p>\n\nAnd Barron is all for it. He argues that Big Waiver makes the government better able to do a variety of things, including \u201cestablish positive rights through direct welfare provision.\u201d He considers it an advantage to allow the federal government to treat parties differently by allowing for \u201cnonuniform, easily revised problem-solving efforts.\u201d Most of all, Barron thinks it is the perfect tool for avoiding \u201clegislative gridlock\u201d (which the Framers would have called \u201cchecks\u201d and \u201cbalances\u201d). He even endorses the outrageous idea that Congress should vote for legislation in bad faith:<\/p>\n\n\nLegislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President\u2019s interests will be protected (if at a high cost) through the safety valve that waiver provisions afford. And legislators of the opposite party can stomach the delegation of authority to the executive precisely because they can spell out in the statute their own preferred regulatory approach, thereby saddling the President with the decision to displace it. In this way, legislators can claim credit for having solved a problem, while either downplaying the significance of the fact that the supposed \u201csolution\u201d is actually far from stable or highlighting to their favored constituents in relatively discrete tones the instability of those features of the framework that cause concern to those same constituents.<\/p>\n<\/blockquote>\n\nIn essence, Barron is cynically proposing that members of Congress vote for bad policy because there\u2019s an escape hatch somewhere, to be exercised someday. Moreover, he proposes that this sort of power-driven log-rolling could convince the executive branch to agree to legislation it has no intention of executing: \u201cFurther, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.\u201d The key, from Barron\u2019s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, \u201cAn effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.\u201d<\/p>\n\nEvaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges \u201cshould defer to Congress\u2019s judgment as to when the technique is \u2018necessary and proper\u2019 in all but very extreme cases,\u201d says that the question of whether an agency has waiver power should be decided \u201cwithout deference to the agency\u2019s judgment,\u201d but then also says that the precise range of the agency\u2019s waiver power and the conditions to be placed on it should receive \u201csubstantial deference.\u201d There\u2019s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to \u201cprogressive constitutionalists\u201d who might judicially review the waivers.<\/p>\n\nThere\u2019s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron\u2019s endorsement of Big Waiver is not whether Congress is, as Barron says, \u201cstuck with a prior legislative judgment it no longer believes is wise.\u201d That is an easy question, at least under the Constitution: Congress can repeal the law. But Barron would have Congress totally abdicate its Constitutional role in the amending and repealing of laws and further asks federal judges to concur in that abdication. In sum, it seems clear that Barron fundamentally misunderstands the role that democratic accountability has to play in this republican democracy.<\/p>\n\n\n\t\t\t\t\t\n\t\t\t\t<\/div>\n\n\t\t\t\t
Affirming Big Waiver\u2019s constitutionality by weakening the non-delegation doctrine would, in Barron\u2019s view, offer benefits that he sees in several of the Obama Administration\u2019s key policy priorities. For instance, the Administration aggressively used provisions of the No Child Left Behind legislation to grant waivers to 33 states and Washington, D.C., allowing these states to receive federal funds but ignore congressional policy. Barron also lauds the Affordable Care Act\u2019s waiver provisions,which allow states to be exempted from the ACA\u2019s elements by proposing their own health-care schemes, and the Secretary of Health and Human Services\u2019 move to waive work requirements as a condition of receiving welfare funds. (On the latter point, Barron delicately describes HHS\u2019s statutory interpretation as \u201cby no means self-evident.\u201d)<\/p>\n\n
Barron mentions several more examples, but the sticking point in all of these \u201cBig Waiver\u201d provisions is this: granting the waivers lies entirely within the discretion of the relevant department<\/em>. The statutes authorizing waivers amount to vast delegations of power to the executive branch, not only to act, but not to act, and to specify the conditions under which waiver will be granted. The power to declare the law not to be the law is effectively a new form of delegation.<\/p>\n\nAnd Barron is all for it. He argues that Big Waiver makes the government better able to do a variety of things, including \u201cestablish positive rights through direct welfare provision.\u201d He considers it an advantage to allow the federal government to treat parties differently by allowing for \u201cnonuniform, easily revised problem-solving efforts.\u201d Most of all, Barron thinks it is the perfect tool for avoiding \u201clegislative gridlock\u201d (which the Framers would have called \u201cchecks\u201d and \u201cbalances\u201d). He even endorses the outrageous idea that Congress should vote for legislation in bad faith:<\/p>\n\n\nLegislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President\u2019s interests will be protected (if at a high cost) through the safety valve that waiver provisions afford. And legislators of the opposite party can stomach the delegation of authority to the executive precisely because they can spell out in the statute their own preferred regulatory approach, thereby saddling the President with the decision to displace it. In this way, legislators can claim credit for having solved a problem, while either downplaying the significance of the fact that the supposed \u201csolution\u201d is actually far from stable or highlighting to their favored constituents in relatively discrete tones the instability of those features of the framework that cause concern to those same constituents.<\/p>\n<\/blockquote>\n\nIn essence, Barron is cynically proposing that members of Congress vote for bad policy because there\u2019s an escape hatch somewhere, to be exercised someday. Moreover, he proposes that this sort of power-driven log-rolling could convince the executive branch to agree to legislation it has no intention of executing: \u201cFurther, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.\u201d The key, from Barron\u2019s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, \u201cAn effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.\u201d<\/p>\n\nEvaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges \u201cshould defer to Congress\u2019s judgment as to when the technique is \u2018necessary and proper\u2019 in all but very extreme cases,\u201d says that the question of whether an agency has waiver power should be decided \u201cwithout deference to the agency\u2019s judgment,\u201d but then also says that the precise range of the agency\u2019s waiver power and the conditions to be placed on it should receive \u201csubstantial deference.\u201d There\u2019s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to \u201cprogressive constitutionalists\u201d who might judicially review the waivers.<\/p>\n\nThere\u2019s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron\u2019s endorsement of Big Waiver is not whether Congress is, as Barron says, \u201cstuck with a prior legislative judgment it no longer believes is wise.\u201d That is an easy question, at least under the Constitution: Congress can repeal the law. But Barron would have Congress totally abdicate its Constitutional role in the amending and repealing of laws and further asks federal judges to concur in that abdication. In sum, it seems clear that Barron fundamentally misunderstands the role that democratic accountability has to play in this republican democracy.<\/p>\n\n\n\t\t\t\t\t\n\t\t\t\t<\/div>\n\n\t\t\t\t
And Barron is all for it. He argues that Big Waiver makes the government better able to do a variety of things, including \u201cestablish positive rights through direct welfare provision.\u201d He considers it an advantage to allow the federal government to treat parties differently by allowing for \u201cnonuniform, easily revised problem-solving efforts.\u201d Most of all, Barron thinks it is the perfect tool for avoiding \u201clegislative gridlock\u201d (which the Framers would have called \u201cchecks\u201d and \u201cbalances\u201d). He even endorses the outrageous idea that Congress should vote for legislation in bad faith:<\/p>\n\n
\nLegislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President\u2019s interests will be protected (if at a high cost) through the safety valve that waiver provisions afford. And legislators of the opposite party can stomach the delegation of authority to the executive precisely because they can spell out in the statute their own preferred regulatory approach, thereby saddling the President with the decision to displace it. In this way, legislators can claim credit for having solved a problem, while either downplaying the significance of the fact that the supposed \u201csolution\u201d is actually far from stable or highlighting to their favored constituents in relatively discrete tones the instability of those features of the framework that cause concern to those same constituents.<\/p>\n<\/blockquote>\n\nIn essence, Barron is cynically proposing that members of Congress vote for bad policy because there\u2019s an escape hatch somewhere, to be exercised someday. Moreover, he proposes that this sort of power-driven log-rolling could convince the executive branch to agree to legislation it has no intention of executing: \u201cFurther, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.\u201d The key, from Barron\u2019s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, \u201cAn effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.\u201d<\/p>\n\nEvaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges \u201cshould defer to Congress\u2019s judgment as to when the technique is \u2018necessary and proper\u2019 in all but very extreme cases,\u201d says that the question of whether an agency has waiver power should be decided \u201cwithout deference to the agency\u2019s judgment,\u201d but then also says that the precise range of the agency\u2019s waiver power and the conditions to be placed on it should receive \u201csubstantial deference.\u201d There\u2019s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to \u201cprogressive constitutionalists\u201d who might judicially review the waivers.<\/p>\n\nThere\u2019s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron\u2019s endorsement of Big Waiver is not whether Congress is, as Barron says, \u201cstuck with a prior legislative judgment it no longer believes is wise.\u201d That is an easy question, at least under the Constitution: Congress can repeal the law. But Barron would have Congress totally abdicate its Constitutional role in the amending and repealing of laws and further asks federal judges to concur in that abdication. In sum, it seems clear that Barron fundamentally misunderstands the role that democratic accountability has to play in this republican democracy.<\/p>\n\n\n\t\t\t\t\t\n\t\t\t\t<\/div>\n\n\t\t\t\t
Legislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President\u2019s interests will be protected (if at a high cost) through the safety valve that waiver provisions afford. And legislators of the opposite party can stomach the delegation of authority to the executive precisely because they can spell out in the statute their own preferred regulatory approach, thereby saddling the President with the decision to displace it. In this way, legislators can claim credit for having solved a problem, while either downplaying the significance of the fact that the supposed \u201csolution\u201d is actually far from stable or highlighting to their favored constituents in relatively discrete tones the instability of those features of the framework that cause concern to those same constituents.<\/p>\n<\/blockquote>\n\n
In essence, Barron is cynically proposing that members of Congress vote for bad policy because there\u2019s an escape hatch somewhere, to be exercised someday. Moreover, he proposes that this sort of power-driven log-rolling could convince the executive branch to agree to legislation it has no intention of executing: \u201cFurther, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.\u201d The key, from Barron\u2019s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, \u201cAn effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.\u201d<\/p>\n\n
Evaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges \u201cshould defer to Congress\u2019s judgment as to when the technique is \u2018necessary and proper\u2019 in all but very extreme cases,\u201d says that the question of whether an agency has waiver power should be decided \u201cwithout deference to the agency\u2019s judgment,\u201d but then also says that the precise range of the agency\u2019s waiver power and the conditions to be placed on it should receive \u201csubstantial deference.\u201d There\u2019s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to \u201cprogressive constitutionalists\u201d who might judicially review the waivers.<\/p>\n\n
There\u2019s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron\u2019s endorsement of Big Waiver is not whether Congress is, as Barron says, \u201cstuck with a prior legislative judgment it no longer believes is wise.\u201d That is an easy question, at least under the Constitution: Congress can repeal the law. But Barron would have Congress totally abdicate its Constitutional role in the amending and repealing of laws and further asks federal judges to concur in that abdication. In sum, it seems clear that Barron fundamentally misunderstands the role that democratic accountability has to play in this republican democracy.<\/p>\n\n\n\t\t\t\t\t\n\t\t\t\t<\/div>\n\n\t\t\t\t