This is the third in a series of posts on my new book, Contested ground: how to understand the limits of presidential power. The last article dealt with the president’s control over the executive. Today’s article focuses on the president’s control over domestic politics.
Almost all of the most controversial presidential actions are taken under the authority granted by Congress, at least with respect to actions in the United States. A hotly debated question is how much leeway Congress can give to the executive in implementing laws. This is sometimes expressed in terms of delegation to “faceless bureaucrats”, but it is a bit of a red herring. Major political decisions by the current federal government are tightly controlled by the White House. When the Obama administration issued ambitious regulations to prevent climate change, key decisions were not made by anonymous officials. The White House had firm control. And that was also true when the Trump administration rolled back those same regulations. Ninety-nine percent of the time when we talk about major political decisions, we are effectively talking about delegation to the president. Sometimes independent agencies make major political decisions such as the FCC’s hesitant net neutrality policies. Even so, decisions are made by people appointed by the President and confirmed by the Senate, as well as cabinet officers and federal judges.
There has been general agreement that Congress cannot simply tell the president or an agency to make regulations on matters that seem appropriate. The problem is trying to draw a line between that and the kind of policy making involved in implementing laws. In American history, the Supreme Court has found only two occasions to declare a federal law unconstitutional because it ceded too much legislative power to Congress. There are strong arguments, inside and outside the Supreme Court, that this judicial passivity should be abandoned and that Congress has given too much leeway to presidents and their appointees.
Developing major new regulations is an extremely slow process, requiring massive data collection, exhaustive analysis, and often multiple cycles of judicial review and review. Congress is also much less free to relinquish its authority than many people realize. It is true that some older laws are quite general, but modern laws like the Clean Air Act can cover hundreds of pages with detailed instructions for the agency. This is not to say, however, that they do not require political judgments from the agencies. For example, pollution laws frequently require the EPA to determine the best technology available to control some form of pollution. This determination requires consideration of engineering issues, costs and benefits of pollution abatement.
Proponents of a strong doctrine of non-delegation argue that the original understanding of the Constitution narrowly restricts the kind of authority that can be bestowed on the executive branch. I’m willing to believe the Framers thought there were limits to delegation. It is more difficult to discern where they thought the limits might be, given that Congress made very large delegations of power almost from the time the government was formed.
Other researchers have written much more in depth about the story. JD Mortensen and Nicholas Bagley found the delegations surprisingly large. Ilan Wurman tried to explain these large delegations as falling under a system of exceptions. Nicholar Perrillo points to a remarkably large delegation to tax commissioners responsible for property valuation.
My favorite is the first patent law. Defining intellectual property rights is certainly a major political decision. However, a law of 1790 leaves this political decision to the executive. The discretion in the original patent law for granting a patent was about as broad as you can imagine: that “the invention or discovery [was] sufficiently useful and important. Based on all of this history, I’m not ready to say that the Framers thought there were no constitutional limits on delegation, but it seems clear that they were ready to accept very large delegations. .
Either way, it seems clear that there are currently at least five judges who would think we need a higher standard for delegations by Congress. However, it is not clear what this standard would be. Some observers, at least, seem to be hoping for a standard that would remove much of the current regulatory state.
A good test case is provided by the keystone of federal air pollution regulations. Section 109 of the Clean Air Act directs the EPA to establish air quality standards based on public health. The standards are supposed to provide an adequate safety margin to protect public health. Setting standards requires considering a lot of very technical evidence to determine health impacts. It also requires judgments about the margin of safety to be provided and how much the impacts on individuals add to a public health problem. Justice Scalia wrote an opinion for the Court confirming this provision against a challenge of non-delegation.
How would the current Court decide this case? Congress made an extremely important and controversial political judgment: only health, not cost, should be considered in setting standards. And much of the agency’s job involves expertise rather than political decisions. On the other hand, there are certainly judgment calls to be made, and even small changes in standards can have major economic impacts. The main clues to the future direction of the Court can be found in a dissent by Justice Gorsuch and the endorsement of Justice Kavanaugh. It is not clear how to apply their tests to this provision.
It is certainly conceivable that a newly reinvigorated non-delegation doctrine would eliminate this provision, and with it about two-thirds of the Clean Air Act. It seems unlikely to me that the Supreme Court would do something so drastic and unsettling. I don’t even know how Judge Gorsuch, who led the non-delegation, would come out of it. The answer may depend on whether he views the risk assessment as a factual determination or a political decision. Judge Kavanaugh has his own privileged approach, but so far he has shown no signs of the kind of radical fervor necessary to invalidate everything from modern environmental law to securities laws. And no one knows what Judge Barrett is thinking.
The central idea of the non-delegation doctrine is that, in an ideal world, government regulatory policy would not be affected by presidential elections. All major political decisions would have been made by Congress, leaving the executive with nothing to do but play with the details. This may seem ideal to those who would prefer no regulation and hope that the congressional stalemate would ensure that outcome. It is not clear to me that this would be the result, since the public demand for regulation would not go away. Handing over to Congress decisions like setting air quality standards also seems unfortunate in other ways, compared to the kind of deliberative administrative process we have today. This would diminish the role of science and economics in regulatory decisions. It is not even clear that this would make the decisions more politically responsible. We know who to blame when the Biden administration or the Trump administration makes a major change in regulatory policy. Who do you blame for an obscure provision in a thousand-page omnibus bill? Delegation has its advantages.
This does not mean that we should be concerned about executive discretion and how it is exercised. But constitutional law is a blunt instrument to control and channel discretionary power. In my opinion, we have more useful tools to ensure responsible decision-making in administrative law and statutory interpretation.
Tomorrow I will step away from domestic politics and look at the presidential war power.