Editor’s Note: The following is the second in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry is available here.
If Justice Brett Kavanaugh is to justify the efforts of the Trump White House, Senate Republicans, and supporters nationwide to confirm him, he should begin by taming the administrative state. This is familiar territory for him. Before his confirmation, Kavanaugh had no clear views on privacy, race, or sexuality, the great constitutional holy of holies of the Left. Instead, his real threat to modern liberalism came from his hostility to the progressive vision of technocratic government run by insulated bureaucrats and protected by deferential judges.
While the administrative state has always been with us in some form, it has metastasized into a progressive perpetual-motion machine. It calls on Congress to delegate broad swathes of its legislative power to federal agencies, it insulates the bureaucrats who exercise that regulatory power from the president’s political control, and it demands that courts defer to officials’ policy choices and even readings of the law.
The modern administrative state distorts the Framers’ original design for lawmaking. As James Madison described it in Federalist 51, the Constitution deliberately creates a difficult obstacle course for any new law: Identical bills must pass two separate houses of the legislature, each one elected by different constituents at different times, and then receive presidential approval. The Framers expected that federal laws would be few and far between, with the states providing most of the direct rules for daily life.
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments,” Madison argued. “Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
But during the Progressive Era at the turn of the last century, American political leaders decided that the Constitution had become obsolete. The Constitution’s antiquated structures of federalism and the separation of powers, President Woodrow Wilson believed, could not keep pace with the demand for expert, scientific regulation, itself prompted by a modern industrialized economy and nationalized society. Wilson’s experiments, later cemented into our government by FDR’s New Deal, replaced the Framers’ system of the rare, specialized federal law with a supercharged bureaucratic engine that spews out an inexhaustible stream of regulations unencumbered by the limits on Congress’s powers.
Kavanaugh now might supply the fifth vote to undo this Teutonic import (Wilson had studied and admired the German theory and practice of administration) into the American system of decentralized, cautious government. Even as a lower-court judge, Kavanaugh attacked the Chevron doctrine, which requires judges to defer to an agency’s “reasonable” interpretation of the statutes it enforces, as “an atextual invention by courts.” Kavanaugh has also raised the idea that broad delegations from Congress ought to be read narrowly, because the Constitution might impose limits on how much power the legislature can hand over. Finally, Kavanaugh voted to strike down the Consumer Financial Protection Bureau (a creation of Senator Elizabeth Warren to police all consumer loans and banking) because it vested too much power in a single person who was too difficult for the president to remove. Kavanaugh may well believe that because agencies such as the CFPB, the Securities and Exchange Commission, and the Federal Communications Commission execute the law, they must undergo regular presidential supervision.
If we read these auguries correctly, Kavanaugh might join the other four conservatives on the Court in resurrecting three methods for restoring control over the administrative state.
First, Article II of the Constitution vests all executive power in the president, except for any explicit enumerated exceptions. The Constitution vests in the president alone the responsibility to see that “the Laws be faithfully executed,” and it implies that all federal officials engaged in law enforcement must fall under his control. As Hamilton explained in Federalist 70, this structure maximizes accountability — the president is ultimately to blame — while vesting the executive with the “decision, activity, secrecy, and dispatch” and “energy” needed to wield its unique type of power, particularly in a crisis.
But when Congress began creating independent agencies under the belief that bureaucrats should exercise technical expertise, it sought to insulate these agencies from politics. So Congress made the agencies “independent” by making it difficult for the president to remove agency staff, as well as sometimes making their funding independent of Congress. Although the agencies violate the Constitution’s vesting of executive authority solely in the president, the Supreme Court upheld their independence during the New Deal under the political pressure of FDR’s court-packing plan (in the case of Humphrey’s Executor). In Morrison v. Olson (1988), the justices reaffirmed agency independence by upholding the independent-prosecutor law, which triggered Justice Antonin Scalia’s finest dissent.
In Federalist 51, Madison argued that people need constitutions because men are not angels. Despite progressive faith to the contrary, agency bureaucrats are not angels either. An independent agency can go rogue by pursuing its own agenda or seeking to help favored parties or even political leaders with impunity, unless the elected branches can reassert their control. The Court should restore the Constitution by overturning Morrison v. Olson and Humphrey’s Executor, allowing the president to once again have complete control over those who exercise the power vested only in the executive branch.
Second, Kavanaugh could provide a fifth vote for the Court to reverse judicial deference to agency interpretations of law. As Chief Justice John Marshall famously declared, the role of the judiciary is “to say what the law is,” meaning to interpret the law (not to make the law), in order to apply it to the case or controversy before the court. But while courts ferociously guard this duty, refusing to defer to the interpretations of co-equal branches (the presidency and Congress), they undergo a crisis of confidence when confronted by unelected bureaucrats.
Most likely because agencies often deal with very technical matters, courts tiptoe lightly when it comes to agency decisions. This makes sense when the question is, for example, the level of pollution that best balances human health against economic growth. We don’t want generalist judges weighing in with their less-than-scientific opinions on outright policy choices. But there is one area in which judges are experts — interpreting the law.
Yet under legal doctrines that go under the names of Chevron, Auer, and Seminole Rock, when an agency appears before a court, judges will defer to that agency’s interpretation of relevant statutes and regulations if the court deems these law ambiguous. This outsources the judge’s job to the agency.
This is bad enough when dealing with acts of Congress, but it is even worse when a court defers to an agency’s interpretation of its own regulations in the course of an enforcement action. The agency truly is then judge, jury, and executioner — mirroring the tyranny against which Montesquieu and Madison warned. (It also motivates agencies to maximize their power by promulgating ambiguous regulations.)
The Supreme Court can jettison the deference doctrines without second-guessing legitimate areas for scientific and technical expertise. Agencies should continue to use their expertise to come up with clean-air or seatbelt-safety standards, within the reasonable and limited boundaries Congress has set for them. Taken to an extreme, judicial oversight of legitimate policy choices would infringe on the president’s executive power to enforce the law. For example, we thought the Court erred badly in Massachusetts v. EPA (2007), where it held that federal law required the EPA to regulate carbon dioxide as an air pollutant. We think the Clean Air Act left to the EPA the scientific decision of whether to a certain substance is a pollutant, and that the justices in the majority were motivated more by their worries about global warning than the EPA’s right to administer the law. But the courts should not defer when it comes to interpreting the law itself, which is an exercise where the courts, not agencies, are the constitutionally designated experts.
Third, the Supreme Court should resuscitate the non-delegation doctrine (which it could do this term in the Gundy case). Due to a combination of increasing societal complexity and congressional cowardice, Congress has punted more and more of its duty to legislate to agencies. Agencies have been only too happy to assume vast legislative powers, without the accountability of answering to the voters.
The consequence of this delegation is easy to see. The last year of President Obama’s administration, with agencies working in overdrive, 95,894 pages of regulations were published. In one year! That’s the equivalent of 159 Harry Potter novels every twelve months. By contrast, in the last two years of the Obama administration, Congress averaged only 165 new federal laws per year.
But Congress may delegate away, with little limitation, because of a 1928 case that requires only that Congress provide an “intelligible principle” to guide the agency before delegating legislative authority to it. What counts as an “intelligible principle”? Most anything, such as whatever is “fair” or “necessary” or “effectuate[s] the purposes of [an] Act.” As a result, Congress has gotten away with broad, amorphous laws such as the Clean Air Act, which essentially authorizes the EPA to do whatever it likes to make the air cleaner without explaining whether to weigh costs, economic growth, and technological feasibility against even minimal gains in health. We think that the Court should enforce a line between delegating fact-finding power to the agencies (such as whether new substances actually pollute the air and harm human health) and simply transferring, without limits, Congress’s power over the environment wholly to an agency (such as ordering the EPA to take any measures it sees fit to clean the air).
Delegating legislative authority to agencies undermines the constitutional separation of powers. The power to make laws was given to Congress. Maybe that is antiquated in our complex society. Maybe we would be better served with a robust administrative state that constantly exercises a mix of executive, judicial, and legislative power.
But that is not the constitutional system we have. The Founders were worried about the tendency to tyranny when power is possessed by one who cannot be effectively checked. Our constitutional system has the genius of diffusing power among three branches of the national government, and between the federal government and the states, as a defense for liberty: Madison’s “double security.”
If the people want to abandon those protections, that is their sovereign prerogative. But until then, Congress, the courts, and the president must not allow agencies to assume their constitutionally required jobs. We can still have clean air, safe roads, and healthy food without violating the Constitution. But forsaking the Founders’ limits on government in the name of administrative ease would bring far more ruin than failing to attend to the popular policy of the day.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.