The Regulatory State on Autopilot: A Response to Comments

My earlier post prompted several very thoughtful comments that well warrant a reply and, folks willing, further discussion.

Thanks to Ron Johnson for his kind words. Yep, there’s ample reason to worry that conniving politicians in Washington go into business for themselves and their friends. The concern is as old as the republic: it was a standard Antifederalist trope. The standard Federalist reply was that the system requires some distance from the electorate (what we now call “agency slack”): that’s Madison’s argument for representation, large electoral districts, “filtration,” etc. And you can argue that the system is now failing us because those mechanisms have broken down: every obscure Congressman is perfectly monitored. Every legislator knows that Medicare is going bust; every legislator has to lie about it and vote the AARP line. In my estimation there’s some truth to the “political class” argument, but it’s not the whole truth.

“gabe” is right to criticize the Court’s slavish adherence to precedent, especially statutory precedent. One particularly obnoxious form of the argument: Congress hasn’t overturned our precedent, so it must be okay. That would make sense if Congress were the House of Commons (and the Court, the House of Lords). In a system of divided powers, it’s a prescription for the Court to push “dynamic” statutory interpretation to the point of, well, absurdity: see Mass v. EPA. There are Kennedy opinions (as well as several forceful Scalia opinions) that reject the “Congress can always overturn us” rationale. By all rights, the Court should act accordingly in Coalitions (assuming, as I do, that it grants cert). But I’m not optimistic. Mass v. EPA has more in common with, say Windsor than with any AdLaw or statutory interpretation case I’ve read. It’s a profession of eco-correctness; and on those sorts of issues the Court typically stays its course and tells us peasants to shut up, lest the rule of law suffer. See, e.g., Planned Parenthood.

“z9z99”’s idea of across-the-board sunset provisions is intriguing but, in my judgment, not a promising prescription. If memory serves, it was a favorite proposal of the Carter administration (along with long-forgotten good government reforms like zero-base budgeting). And speaking of that administration: at the time, Congress got so upset about the FTC and its Chairman (Michael Pertschuk) that it refused to authorize the Commission altogether. It wasn’t re-authorized until some time during Tim Muris’s reign, under Bush 43; in the interim, the agency continued to operate under continuing resolutions of one sort or another. Similarly, environmental statutes (such as the CAA) often contain sunset provisions; they’re routinely ignored or circumvented in the same fashion. The broad consensus in the PoliSci literature is that sunset provisions “work” only when the coalition that enacted the statute in the first place has fallen apart. But that happens only rarely: barring seismic, sudden shifts, agencies will manage to keep their programs in line with their paymasters’ wishes and take care not to test the limits of congressional tolerance. Under those normal conditions, a sunset provision that’s intended as a veto point instead becomes an opportunity point: it helps the various “stakeholders” (so called because they drive stakes through the economy) to pile on garbage that might otherwise remain un-enacted, for want of a legislative vehicle. Every re-authorization of the CAA that did occur provides depressing evidence.

Sorry to be the skunk that pours cold water, or whatever.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. Before coming to AEI, Professor Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. He holds a Ph.D. and M.A. in government from Cornell University, and completed his undergraduate studies at the University of Hamburg. Currently, Professor Greve also chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Professor Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including most recently The Upside-Down Constitution (Harvard University Press, 2012). He has also written The Demise of Environmentalism in American Law (1996); Real Federalism: Why It Matters, How It Could Happen (1999); and Harm-less Lawsuits? What's Wrong With Consumer Class Actions (2005). He is the coeditor, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) and Federal Preemption: States' Powers, National Interests (2007); and, with Michael Zoeller, of Citizenship in America and Europe: Beyond the Nation-State? (2009).

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  1. John Ashman says

    I find it interesting that the ideas of “precedent” and “restraint” and “deference” all essentially state that it is okay insult the Constitution, but not dead men who may have been thoroughly incorrect.

    The very concept puts judges above the law.

  2. says

    The broad consensus in the PoliSci literature is that sunset provisions “work” only when the coalition that enacted the statute in the first place has fallen apart. But that happens only rarely: barring seismic, sudden shifts, agencies will manage to keep their programs in line with their paymasters’ wishes and take care not to test the limits of congressional tolerance.

    Professor Greve,

    Let me see if I understand you correctly. You seem to be saying that if sunset provisions are in place, then “agencies will manage to keep their programs in line with their paymasters’ wishes and take care not to test the limits of congressional tolerance.” Did I interpret you correctly? If so, then I am encouraged. The whole point is to provide some incentive for agencies to avoid “seismic shifts,” such as declaring CO2 a pollutant so as to beget another utopo-tyrannical regulatory hydra. The goal is to discourage bureaucratic adventurism of the type engendered by poorly written, unread and mystically deluded legislation like the Affordable Care Act

    I am skeptical that forcing Congress to explicitly affirm or renounce the scope of authority delegated to the executive is less desirable than Chevron deference. The coalitions that enact statutes might well, and should, fall apart when partisan bureaucratic meddling over-reaches in regulatory affairs.

    And please note, the “sunset” to which I was referring was directed at burdens imposed by regulatory action that have not been voted on by Congress, not the existence of the agencies themselves. This follows from a simple republican principle: that any burdens borne by the people be imposed only by the legislative branch of government, not the judiciary or the executive.

    I don’t understand your point that under “normal conditions” a veto point become an opportunity point. If the opportunity is taken by an elected legislature at the expense of an unelected bureaucracy, that to me is a good thing. At least an elected representative is accountable for what he does with the opportunity.

    Thank you for your thoughtful and informative reply, but I stand behind my earlier post.

    • John Ashman says

      One of the advantages of sunsets is that it keeps Congress busy replacing expiring law, rather piling on (there are about 8000 new regulations every year). But also, many of these coalitions DO fall apart and so unpopular laws will fall away. Unpopular, useless agencies might get defunded.

      The stated goal of every agency should be to eliminate the need for itself. Not to eliminate poverty, but to eliminate the need for a poverty agency. It’s hard to think of a Federal agency that we really would love to keep even if there was no need, outside, perhaps, NASA and even then, by privatizing space exploration, we may go much further, much faster and much cheaper.

  3. John Ashman says

    One of the substantial problems we have is that we have a greater threshold to put someone in jail, than to take away rights from the entire country. A jury generally requires unanimity, yet we can infringe upon all of society with incredibly arbitrary 5-4 margins. If even SCJ says that a law is unconstitutional, then it should be labeled unconstitutional, returned with the objection noted and a new law that is constitutional written. The only leeway should be in times of great emergency and with a solution that is granted temporary status for no more than 2 years so an Amendment may be passed. Or not passed.

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