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05/12/2017

Stanford Conference on "A Big Fix: Should We Amend Our Constitution?"
Michael Ramsey

Today and tomorrow I will be attending what looks to be a very interesting conference at Stanford Law School, hosted by Professor Michael McConnell's Constitutional Law Center.  It's called "A Big Fix: Should We Amend Our Constitution?" -- and it features a series of speakers proposing specific amendments, with commentary.

Here is mine:

The Executive Oversight Amendment [or, let's overrule Chadha]

Sec. 1. Congress may, by majority vote of each House, disapprove of any rule, policy or course of action adopted by any executive or administrative officer or agency of the United States, if such rule, policy or course of action purports to be done pursuant to delegated authority from Congress and affects the rights or duties of persons within the United States.  Upon a vote of disapproval, the rule, policy or course of action shall be discontinued and cease to have effect.

Sec. 2. The disapproval provided in Section 1 shall not be presented to the President for signature or veto [and shall not be subject to any procedure in the Congress that has the effect of requiring a supermajority vote].

Sec. 3  The disapproval provided in Section 1 shall not extend to any matters of personnel nor to any rule, policy or course of action solely affecting the internal operations of the executive branch.

Discussion:

Chadha was right, but Chadha was wrong.  In INS v. Chadha, the Supreme Court famously (and in my view rightly) held that Article I, Section 7 of the Constitution precludes Congress from “vetoing” presidential actions by a method other than passing a bill through bicameralism and presentment.  In the founding era, checking the president by congressional “veto” likely was not needed to protect separation of powers.  But it is needed now.  The exponential growth of the federal government, the increased speed and complexity of modern events, and the increased political polarization in Congress have created a situation in which Congress inevitably delegates broad authority to executive and administrative agencies and lacks adequate means for oversight.  The result is twofold: expansion of executive power relative to that of Congress, and the commitment of lawmaking authority to unelected administrative bodies.   These phenomena have been widely remarked, both by those who applaud them and those who condemn them.  [E.g., Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2013); F. H. Buckley, The Once and Future King: The Rise of Crown Government in America (2014); Philip Hamburger, Is Administrative Law Unlawful? (2014); Josh Blackman, Gridlock, 130 Harv. L. Rev. 241 (2016).]

The proposed amendment does not try to cut back on delegation or executive/administrative lawmaking; it only seeks to provide a check by empowering Congress.  As matters currently stand, Congress’ oversight of executive/administrative lawmaking is weak because any correction passed by Congress must confront a presidential veto.  A veto is likely because the president presumably supports the agency action (especially in the case of executive agencies, but likely also in the case of quasi-independent agencies).  Veto overrides are increasingly difficult due to political polarization in Congress.  Further, Congress’ other tool for managing agencies – control of their budgets – seems increasingly problematic due to omnibus budgeting and increased politicization of the budget process.  Whether or not one ultimately supports executive/administrative lawmaking, it should a concern rooted in separation of powers that this lawmaking is taking place largely unchecked.

While other remedies have been proposed, they may appear either too weak or too strong.  For example, one suggestion is to scale back courts’ “Chevron” deference to agency interpretations of authorizing statutes. [See H.R.5, Regulatory Accountability Act of 2017, passed by House of Representatives 01/11/2017.] However, this seems inadequate on several grounds.  First, because authorizing statutes are often necessarily open-ended, the problem is frequently not so much agencies exceeding their authority, but agencies acting unchecked within their authority.  Chevron reform does not address this problem.  Moreover, at best Chevron reform only checks one partially unaccountable actor (agencies) through the intervention of another largely unaccountable actor (the courts).  Another remedy might be to limit congressional delegation – for example, by requiring “major” rulemaking, such as rules having a specified economic impact, to be approved by Congress.  [See H.R.26, Regulations from the Executive in Need of Scrutiny Act of 2017 [REINS Act], introduced 01/03/2017.]  This suggestion, however, may be too strong a remedy for those who think modern circumstances require a substantial degree of executive/administrative speed and flexibility.

An objection to the amendment may be that it will be meaningful only when both houses of Congress are controlled by the opposition party.  I think this is not a substantial objection.  First, this circumstance is not uncommon (it was true for four of the last 16 years), and in this circumstance the priories of the President and Congress are most likely to diverge sharply.  Thus empowering congressional oversight is especially important.  Second, even when the President’s party controls one house of Congress, the disapproval power will make Congress more accountable.  Where a threatened presidential veto would block Congress, it is easy for Congress to deflect criticism by pointing to the practical impossibility of override.  With the veto removed, it would be clear that only obstruction in Congress is preventing the disapproval of unpopular presidential or administrative actions.  Thus responsibility for failure to block presidential/administrative policies would be placed clearly on the president’s party in Congress, resulting (in the case of unpopular policies) in either strong pressure to vote against the president or the ability to appeal promptly to the electorate in congressional elections.

Like most intermediate proposals, it likely does not go far enough for many people and goes too far for others.