David J. Barron, Part 5: ‘Big Waiver’

So far in my series about David J. Barron (Part 1, Part 2, Part 3, and Part 4), President Obama’s pick for the First Circuit Court of Appeals, I have emphasized that Barron’s judicial philosophy would incorporate an agenda for using constitutional law to accomplish political objectives which he calls “progressive constitutionalism.” This agenda includes the deliberate inversion of the Constitution’s federal scheme.

This post addresses another serious defect in Barron’s view of the Constitution: his belief that Congress can simply allow the Executive Branch the broad ability to “waive” inconvenient laws. To his credit, Barron doesn’t endorse President Obama’s apparent view that the president can refuse to enforce duly enacted laws on his own constitutional authority. Instead, Barron proposes that Congress do something almost as bad: authorize the President to refuse to enforce duly enacted laws. As Barron describes, this would take the following form: “Congress 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.”

He calls that “Big Waiver”. The purpose of “Big Waiver” is, in Barron’s view, to allow administrative agencies to “displace a regulatory baseline that Congress itself has established.” In other words, Barron wants Congress to let agencies rewrite congressionally enacted policies.

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 “intelligible principle.” As Justice Scalia explained the non-delegation doctrine in Whitman v. American Trucking Ass’ns, 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 “intelligible principle” for the Executive to follow rather than giving an agency free rein to add (or, here, remove) content to congressionally enacted laws.

Affirming Big Waiver’s constitutionality by weakening the non-delegation doctrine would, in Barron’s view, offer benefits that he sees in several of the Obama Administration’s 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’s waiver provisions,which allow states to be exempted from the ACA’s elements by proposing their own health-care schemes, and the Secretary of Health and Human Services’ move to waive work requirements as a condition of receiving welfare funds. (On the latter point, Barron delicately describes HHS’s statutory interpretation as “by no means self-evident.”)

Barron mentions several more examples, but the sticking point in all of these “Big Waiver” provisions is this: granting the waivers lies entirely within the discretion of the relevant department. 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.

And Barron is all for it. He argues that Big Waiver makes the government better able to do a variety of things, including “establish positive rights through direct welfare provision.” He considers it an advantage to allow the federal government to treat parties differently by allowing for “nonuniform, easily revised problem-solving efforts.” Most of all, Barron thinks it is the perfect tool for avoiding “legislative gridlock” (which the Framers would have called “checks” and “balances”). He even endorses the outrageous idea that Congress should vote for legislation in bad faith:

Legislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President’s 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 “solution” 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.

In essence, Barron is cynically proposing that members of Congress vote for bad policy because there’s 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: “Further, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.” The key, from Barron’s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, “An effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.”

Evaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges “should defer to Congress’s judgment as to when the technique is ‘necessary and proper’ in all but very extreme cases,” says that the question of whether an agency has waiver power should be decided “without deference to the agency’s judgment,” but then also says that the precise range of the agency’s waiver power and the conditions to be placed on it should receive “substantial deference.” There’s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to “progressive constitutionalists” who might judicially review the waivers.

There’s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron’s endorsement of Big Waiver is not whether Congress is, as Barron says, “stuck with a prior legislative judgment it no longer believes is wise.” 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.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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