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01/09/2022

Peter Wallison on the Supreme Court and the Administrative State
Michael Ramsey

At Law & Liberty, Peter Wallison (AEI): The Supreme Court Confronts the Administrative State. From the introduction:

It could be a coincidence—or it could foretell an historic Supreme Court term. The Court has now accepted two cases for this term that could threaten the essential legal underpinnings of the federal administrative state.

The first is American Hospital Association v. Becerra, in which the plaintiff questions the Chevron doctrine—a rule fashioned by the Supreme Court itself in 1984 that requires lower federal courts to defer to administrative agencies’ interpretation of their delegated authorities, where the statute is ambiguous and the agency’s decision is “reasonable.” Under this rubric, lower federal courts have given administrative agencies wide leeway to interpret the scope of their authority. 

The second case, which has received less attention, is West Virginia v. Environmental Protection Agency, in which the state is challenging EPA’s authority to impose restrictions on the emission of greenhouse gases under the Clean Air Act. West Virginia has a number of objections to the EPA’s actions, but one of them raises a constitutional issue known as the nondelegation doctrine, which was last invoked by the Supreme Court in 1935. This holds that under the Constitution’s separation of powers, Congress may not delegate any of its legislative authority to agencies of the executive branch. Accordingly, if Congress gave so much discretion to the EPA in the Clean Air Act that the agency could create what was in effect a new law—without congressional authorization—the Act would violate the nondelegation doctrine.

Thus, while Chevron has largely been used to expand the authorities of administrative agencies over time—with the courts providing generous readings for agencies’ claims of authority under ambiguous laws—the nondelegation doctrine has the potential to narrow the range of administrative activity by requiring Congress to enact more tightly drawn legislation. If the Court should weaken or eliminate Chevron, and re-invigorate the nondelegation doctrine, it would mean—in a single term—a significant narrowing of administrative state authority and an historic shift in the Court’s jurisprudence away from precedents initially established in and after the New Deal.

Prior cases have laid the groundwork for changing the Court’s view of both doctrines. ...

Adding to this, of course, are the vaccine mandate cases argued at the Supreme Court on Friday.

Although often described, especially by right-leaning commentators, as a problem of the administrative state, I see these issues as centrally concerned with executive power.  Recently there has been much academic writing about constraints on executive power, in particular constraints on the President's ability to remove executive officers.  But that is largely a sideshow (albeit an interesting one to me).  The modern President's power is not materially limited by having a handful of agency heads protected from at-will removal, nor is that power greatly enhanced by the Court finding some of these protections unconstitutional.  The modern President's great power stems largely from (a) Congress' broad delegations of policymaking authority to executive agencies and (b) Presidents' willingness to read these delegations extremely aggressively (and courts' acquiescence in these broad readings).

Both of these factors can be seen in the two cases mentioned in the linked essay, as well as the vaccine cases.  None of them involves (as Justice Black famously put it in the Youngstown case) the President "direct[ing] that a congressional policy be executed in a manner prescribed by Congress."  All of them involve instead (again in Black's words) the President "direct[ing} that a presidential policy be executed in a manner prescribed by the President."  The latter, Black said in Youngstown, is unconstitutional:  "The Constitution limits [the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." But the modern President (with an assist from Congress and the courts) routinely circumvents Youngstown by pointing to a vague statute arguably conveying almost unlimited policymaking discretion.

How much the Constitution's original meaning can be deployed to address this situation is a different question, and (as the essay says) an important one for this year at the Court.