A Limit To The Bureaucrats’ Fiat

Michigan Lawprof Nicholas Bagley raises the alarm that, based upon the Supreme Court’s decision in Gundy v. United States, Justice Elena Kagan might be right that “most of Government is unconstitutional.” Whether that’s correct or hyperbole, is that a bad thing?

In Gundy v. United States, which concerned the constitutionality of a law requiring the registration of sex offenders, four of the more conservative justices endorsed a controversial legal theory according to which Congress lacks the power to delegate broad powers to agencies like the Food and Drug Administration and the Department of Heath and Human Services.

The “controversial legal theory” is called the “nondelegation doctrine,” which limits Congress’ authority to enact a law with a general concept and hand it off the bureaucrats to make it happen.

Back in 1935, the Supreme Court signaled that it was open to this argument. In two cases, the court struck down New Deal laws for vesting too much authority with too little guidance. According to the court, Congress had to offer some “intelligible principle” about how agencies were to exercise the power they were given.

It turned out, however, that the intelligible principle could be pretty minimal. Since 1935, the Supreme Court has approved laws telling agencies to regulate “in the public interest” and to set pollution standards “requisite to protect the public health.” Not once in the 84 years since has the Supreme Court invalidated a law because it offends the so-called nondelegation doctrine.

In the case before the Court, Gundy was convicted a year before the Sex Offender Registration and Notification Act (SORNA). But the DoJ decided that the law applied to Gundy, even though the law said nothing of the sort and implicated ex post facto concerns. But Congress delegated its authority to the AG, and so the DoJ made up its own rules, and that meant Gundy lost.

But in a plurality opinion, in which Justice Kavanaugh recused himself and Justice Alito joined with Kagan because, well, it was SORNA, it was clear in his concurrence that he was open to revisiting the entire concept of congressional delegation. In other words, this wasn’t the case to take on the bureaucacy, but the majority of the Court was not feeling the love toward the bureaucracy. Yet no Supreme Court before rejected a law based on the nondelegation doctrine.

And for good reason. To run a functional, modern government, Congress has no choice but to delegate authority and discretion to federal agencies. Doing so allows Congress to make use of agencies’ resources and scientific expertise, to enable a nimble response to emerging problems and to insulate technocratic decisions from raw politics.

These are the arguments in favor of rule by bureaucracy, and they’re not necessarily wrong. But then, there are arguments in the other direction, which Bagley neglects to mention, as well as shifts in both the nature of bureaucratic rule and the politicalization of agencies that have fundamentally altered the equation.

Are administrative agencies “experts” anymore, or are they now activists, using administrative fiat to impose rules that no Congress has approved. The short answer is it varies from agency to agency, some retaining its non-partisan expertise while others becoming hotbeds of radical power, capable of doing things that could never been done otherwise.

Indeed, the unelected Secretary of a cabinet-level department, or one of the lesser bureaucrats whose name is unknown to the public, could unilaterally alter how a nation functions without anyone knowing or having the ability to stop it. You ask “really?”  Does the name Catherine Lhamon ring a bell?

Bagley frames this as a partisan concern, the wings of the Supreme Court in conflict, because how better to signal to the tribe which side they should be on? But that’s a bit too disingenuous, given that suits to take down the citizen question on the 2020 census are pending. If the administrative, as opposed to legislative, state is necessary to a functional government, then deference to the “expertise” of the Census Bureau would end the question. But it doesn’t, because this exercise of administrative fiat, stemming from a higher authority than Congress, is wrong and dangerous, and progressives demand the Court intervene to prevent it.

Nothing in the Constitution requires that result. The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.

Sounds nice, but it’s a grossly simplistic expression of the issue. What if Congress enacted a law that stated simply, “Do good,” and created the Department of Good to make that happen? Is that not an exercise of power? Of course it is. It’s also a worthless mandate since what constitutes “good” will blow in the political winds.

But the concrete issue is different today than it was in 1935, for better or worse. Administrative agencies have grown far bolder, more activist and less shameful in their exercise of raw power to achieve ends that were unthinkable before. They’ve tested the limits of authority and learned that they can get away with almost anything, and they do.

At the same time, agencies that were created to address discrete functions have fulfilled them, and mission creep has set in. Having answered all the questions, created all the rules, established the parameters that fulfills their congressional mandate, what are bureaucrats supposed to do when they come to work every day? Find new dragons to slay.

The good faith of Congress in recognizing its political nature and lack of technical expertise was a reflection of humility when this experiment in an administrative state began. But as the functional oversight of an ever-increasing, ever-powerful bureaucracy seized control, and as Congress came to realize that it was no longer about its ability to micro-manage a nation but about creating lazy, platitudinous laws and leaving the hard work of figuring out what those fortune-cookie admonitions meant in practice, the bureaucrats took the burden off politicians.

Delegation made a great cover for congressional abdication of duty rather than reliance upon humble public servants fleshing out Congress’ purpose in good faith.

That argument, however, may not carry the day. And make no mistake: If the law in Gundy is unconstitutional, then as Justice Kagan wrote, “most of government is unconstitutional.” Alarmingly, a majority of justices on the Supreme Court may not have a problem with that.

Much of government has gotten out of control over the last 84 years. If the Court puts a stop to the unfettered tyranny of partisan bureaucrats, America may not have a problem with that either.

8 thoughts on “A Limit To The Bureaucrats’ Fiat

  1. Jim Tyre

    What if Congress enacted a law that stated simply, “Do good,” and created the Department of Good to make that happen?

    It’s clear who should head that department.

  2. Appellate Squawk

    Worse than that, when it’s the AG, basically a jumped-up cop, who makes the laws. And notice how all the “good” judges: Kagan, Ginsburg, Sotomayor and Breyer have completely drunk the Kool-Aid about how SORNA protects the public and kiddies against “sex offenders.” It’s only the big bad Trump-appointed Gorsuch who notices that, “freed from the need to assemble a supermajority for his views, the Attorney General does not hesitate to apply the statute retroactively to an unpopular majority.”

    1. SHG Post author

      Be fair, AS. It’s not as if we’re not in the midst of a rape epidemic and need protection at all costs. Everybody says so.

  3. Eliot Clingman

    It would be highly desirable for Congress to stop abdicating its powers to the executive. But the problem is more than can be solved by a supreme court judgement.

    As seen in other advanced democracies, the legislature has maintained its supremacy in the “regulatory state” only by turning itself into a highly streamlined body, with a controlling lower chamber, strict party whips. and the executive drafting almost all laws for legislative approval. Effectively the legislature has maintained the power of veto not lawmaking.

    Given US history and political customs, its hard to imagine the Congress adopting this model, much less proposing the necessary constitutional amendments. But the result is unfortunate.

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