Stop Blaming the Supreme Court for Telling Congress to Do Its Job

K imberly Wehle has a problem with the current Supreme Court. Or so she thinks.

In a recent article for The Atlantic, the visiting law professor at American University opened with a laundry list of accusations against the Court’s originalist majority. These included “stripping women of their constitutional rights, hamstringing the states’ ability to regulate guns, and sidelining the constitutional mandate to keep religion out of government.”

Wehle’s real problem is not with the Court but with the Constitution, as her criticism of the Court’s 6–3 decision in West Virginia v. EPA — which required Congress, rather than federal bureaucratic institutions such as the Environmental Protection Agency, to set major regulatory policies — makes clear.

The Constitution’s first three articles establish the national government’s structure. The essence of this structure is the separation of the governmental powers to legislate, enforce, and adjudicate disputes about the law into distinct institutions. Wehle admits as much, writing, “Strictly speaking, these job descriptions envision a Congress that generates laws and an executive branch that enforces those laws.”

Yet, Wehle argues we shouldn’t think (or act) so strictly. First, she rightly notes that the executive branch does not currently live up to its proper constitutional role, as federal agencies “routinely make laws, referred to as ‘regulations.”’ (One could add here that not only do these agencies make laws routinely; they make most of the laws emanating from our government — far more than those duly passed by Congress and signed by the president.) Moreover, she points out that this kind of administrative legislating first took off during the New Deal era and has continued apace ever since.

Ultimately, however, Wehle’s observations on how our government works in practice don’t translate to a proper defense of its constitutionality. She defends administrative lawmaking on two grounds. First, she writes that Congress cannot handle the task of lawmaking that the Constitution, “strictly speaking,” demands: There is too much to regulate, Congress is too deadlocked, and its members do not possess the needed expertise to write laws governing health, the environment, and various other spheres of our economic and social life. Second, she argues that any constitutional qualms about federal bureaucrats’ making the law are resolved by the fact that “Congress gave them the power to do so” (emphasis in original). In other words, Congress was a willing partner in this transfer of power to the executive branch, passing broad, even vague laws that intentionally left most decisions to the agencies.

From a constitutional perspective, neither argument holds water. The first appeals to convenience: Since we desire a massive regulatory regime, we can bypass the constitutional requirements for lawmaking to get one. Doing so ignores that perhaps our Constitution’s lawmaking process had a reason for limiting the amount of regulation possible in any time span. The Framers saw the problems inherent in too many laws and in regulations that changed too easily: Both often led to a loss of individual liberty, with citizens unable to keep up with what the laws required and what protections they might offer. Furthermore, the Framers understood the legislative process to produce better laws when followed, requiring as it does deliberation among different persons and institutions who can see and address the flaws in bills before they become law.

The next argument Wehle employs essentially takes what the Constitution mandates and makes it optional. Article I of the Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The “shall” language is not optional. The Constitution doesn’t grant Congress the choice to make laws or to pass that responsibility off to others. This is true even if, as Wehle notes, Congress might exercise some measure of oversight over those to whom it has wrongly handed lawmaking power. The Constitution demands that Congress — and Congress alone — exercise that power.

Again, there is a principled reason why the Constitution requires this: We the People are the ultimate sovereign in this country. The national government derives its authority and legitimacy from us. Members of Congress operate as our representatives in the exercise of the lawmaking power. For them to then transfer that power to unelected bureaucrats undermines America’s fundamental commitment to government by the consent of the people.

Wehle argues that the Court, far from returning power to Congress and the people, has taken power for itself. But it has done no such thing. It has merely followed its proper constitutional role of interpreting the laws, and demanded that the legislative branch follow its proper constitutional role by making the laws. If the justices’ decision in West Virginia v. EPA swells the Court’s power, and not Congress’s, that will be Congress’s fault for continuing to unconstitutionally delegate its lawmaking powers to the federal bureaucracy.

The Constitution isn’t a mere note of advice. It isn’t a collection of handy general guidelines that can be cast aside and ignored when convenient. It is the fundamental law of the land, and Congress would do well to start treating it as such. If the Court has no trouble following its proper role in our constitutional order, our elected representatives should have no trouble following theirs.