Memo to Messrs. Thune, Johnson, and company: Fill in your own blanks.
My apologies. I have spent the week talking to public officials and, recidivist that I am, found myself falling back into the slatternly Washington habit of quoting myself. These words will not soon be carved into the lintel of a large Beltway building, but I hope that Messrs. Thune, Johnson, and company will consider them nonetheless: “It has long been Democratic orthodoxy to regard a crisis as a terrible thing to waste. . . . It is more terrible still to waste an opportunity that arrives unbidden.”
My reference there is to the Supreme Court’s Chevron decision, announced at the end of term this past June. By a vote of six to three, the Court overturned its earlier ruling that deference should be shown to administrative agencies in their interpretation of federal law. Justice Elena Kagan, in her dissent, predicted that the reversal would “cause a massive shock to the legal system.”
If only . . .
When that earlier decision was handed down, back in 1984, it had received scant attention. It seemed to be little more than an exercise in tying off loose procedural ends. Somebody had to interpret what the legislators had intended to say. Why not the administrative agencies? In the years since, however, the ruling has been cited by federal courts more than 18,000 times and has become a pillar — and one of the principal enablers — of the administrative state.
When the Court gave the administrative agencies an inch, they took several miles. Literally. When I was in Washington in the Eighties, the White House complex began to creep outward, taking over some of the townhouses across the street on Lafayette Square. On Capitol Hill, the legislative branch swelled a bit, too, easing down the hill toward Union Station. The administrative state took everything else. It filled in whole blocks of downtown Washington, and then entire neighborhoods, and then built “compounds,” some of them set well out into the suburbs. It’s hard to get an exact count, but the administrative state now employs almost a million nonmilitary administrators, which would make it, after the Pentagon itself, the largest employer in the country.
The literalists among you will have noticed that while the presidency is carefully defined by the Constitution, and the legislature’s prerogatives and responsibilities are set out there with some precision, the administrative state goes unmentioned. Its unauthorized, unanticipated, and exponential growth has proceeded apace these many years for several reasons, but conspicuous among them is this one: the failure of the Congress to do its job.
To get a sense of the problem, you should read a congressional bill, any bill, passed into law in the last decade or so. You will find it to be a lab-quality specimen of turgidity, written by somebody to whom English cannot possibly be a first language and comprehensible only to readers willing to parse each paragraph at least twice.
How can we explain such an irresponsible and customer-unfriendly work product? That’s a difficult question to answer, but I tried it out on a few people who should know. They don’t. One Hill veteran told me that it may be because nobody reads the bills, not even the self-designated “authors.” Another said, obliquely, that it may be because the legislators, of both parties, prefer obscurantism to any clarity that might intrude upon a smooth progress to reelection. A third source said that it may be because the legislators, eager to avoid the expenditure of political capital, would prefer not to draw any red lines that, perforce, would reward one interest while slighting another.
This last answer seems to come close to the truth. For an elected politician, vagueness is rarely an enemy, specificity rarely a friend. The elected politician would, quite rationally, prefer to write a bill that is warmly aspirational rather than sternly judgmental. The elected politician would even, at some level of consciousness, consider it a favor if the administrative agencies would make the tough calls of interpretation.
Which is at least in part how we arrived at the current reality: Congress now passes laws, and the bureaucrats of the administrative state — unelected and assured of virtually lifetime tenure by monopoly union power — tell the citizens what their elected representatives really meant to say. Sad.
And so we say to Messrs. Thune, Johnson, and company: Hello! Anybody home? You did nothing whatsoever to earn it, but the Supreme Court has dropped in your lap a gift of great value. It’s a do-over! You now have the opportunity to reclaim your assigned constitutional role. You should start passing bills that say exactly what you mean. You should think of yourselves as making laws, not suggestions. All you have to do is fill in your own blanks.