One of the main ways that administrative agencies exercise non-executive power is through their extensive rulemaking authority. Agencies exercise quasi-legislative (or simply legislative) power by enacting rules on the basis of often vague statutory requirements, such as “promoting the public.” The best solution to this issue would probably have Congress pass the rules that govern the public rather than leaving the decision to agencies. But Congress likely does not have the expertise to write these rules or the time to enact them.
When most people focus on the program of left-liberal constitutionalism, they naturally think of the expansion of unenumerated rights, from the right of abortion to same-sex marriage. But in my view the more important part of their current project is structural—to create centers of constitutionally protected power naturally inhabited by left-liberals and thus resistant to the vagaries of electoral control.
One example is campaign finance jurisprudence. The press has obvious influence on elections with its ability for agenda setting and framing. And the press is overwhelming left-liberal. One important check on that power is the ability of outside groups to raise money and buy advertising at election time. One might naively believe that these groups had the same free speech rights as the institutional press, but the entire thrust of left-liberal campaign jurisprudence is to provide constitutional protection to legislation that gives different rights to the press and citizens. Accordingly, this jurisprudence would protect a structure where an important left-liberal sector does not have as many competitors to its influence on an essential part of republican government–elections.
Another example is “diversity” jurisprudence.
The FCC is about to eviscerate the Obama administration’s rules on net neutrality. One of its reasons is that the elimination of net neutrality will provide incentives for internet providers to put more investments into speeding up the system, because the network providers, not the government, will make pricing decisions. But how can internet providers be confident that they will reap the value of their investments given that any Democratic Administration elected in 2020 will almost surely bring back net neutrality? And one of the Democrats’ arguments in favor of net neutrality will surely be that net neutrality gives content providers the confidence to invest in content. Wash, rinse and repeat!
The partisan vacillation about net neutrality show how the administrative state in our politically polarized time can be a powerful force for instability and therefore a hindrance to economic growth. Of course, the original conception of the administrative state made it a bulwark of stability, since its judgments rested on technocratic science. But no one much defends anymore the view that administrative policies emerge from a transmission belt of science. Instead agencies use their broad statutory delegations to make substantially political decisions. And Chevron has effectively broadened those delegations, because it gives agencies the power to interpret the scope and content of these delegations so long as that interpretation is reasonable, even if it is not the best one.
The instability created by the administrative state contrasts with the stability in government that James Madison believed “essential to [its]national character.”
Jon Huntsman and Joseph Lieberman have written an interesting piece arguing against rule by narrow majorities. They believe rule by the 51 percent leads to polarization, instability, and oppression of minorities. I generally agree, and Mike Rappaport and I have devoted a substantial portion of our careers arguing that supermajority rule requiring consensus for government action, particularly at the federal level, is often better than narrow majority rule.
But even worse than enactment of coercive regulation by a bare majority is that by a minority. And the modern American administrative state encourages minority rule. The basic reason is that the President is likely to represent more the median voter of his party rather than the median voter of the nation. His nomination was secured by satisfying these voters. To be sure, his election and reelection depends on assembling a broader coalition but citizens appear to vote at the national election more on the state of the economy and a few very high visibility policies than a President’s overall administrative record.
As a result, an administration’s regulatory agenda will often represent the preferences of only a minority of the nation. Sadly, administrative law gives the President and his appointees substantial discretion to follow such preferences. Broad delegations allow for the choice of a wide range of policy points, including those on the more extreme ends of the spectrum.
One way of understanding American history is as a struggle between consequential Presidents who expand liberty and consequential Presidents who expand the state. On this view, most Presidents are frankly not all that important: their decisions are marginal and many are reversed or substantially modified.
If so, Donald Trump’s victory had an important benefit for liberty, even if he himself is no classical liberal, because it prevented Barack Obama from being a consequential President on the statist side of the ledger.
Might the administrative state have expired quietly, six months ago? Arguably it did, if what we mean by the administrative state is the array of regulatory agencies, not only executing the law, but also creating binding new law without legislative consent. Bear with me.
Yesterday, the Hoover Institution hosted a conference on “A Better Way,” the House Republicans’ agenda to make America perhaps not great again but at least work again. That proved a useful focus for a panel discussion featuring yours truly (video link to come). As for ABW itself, I’m with the Boss: Well my soul checked out missing as I sat listening To the hours and minutes tickin' away Yeah just sittin' around waitin' for my life to begin While it was all just slippin' away The fact is that ABW is dead for the foreseeable future. Mr. Trump has severely compromised, if not single-handedly destroyed,…
The left and even some Republicans have argued that the procedures for agreeing to the Trans Pacific Partnership are undemocratic. A leading argument is that voting for “fast track” for the TPP violates democratic principles because Congress is changing its rules now in order to later ratify an agreement it has not yet seen.
The arguments are wholly misplaced. “Fast track” simply permits Congress under its ordinary procedures to commit to a future majority vote of Congress to vote up or down on an agreement that the President has negotiated. Representative democracy is thus served by the later vote on an agreement whose text is known.
It is true that fast track eliminates certain procedural obstacles like the filibuster rule in the Senate and the requirements of committee approval. But there is nothing sacrosanct about a set of procedural rules to democracy.
In my last post, I wrote about how the Congress might be able to limit executive power. In the near future, the most likely possibility is that the Republicans would gain control of the Presidency, keep control of the Congress, and have an ideological commitment to constraining executive power. Whether this is likely or not, it is certainly a real possibility.
In a recent concurrence, Justice Thomas wrote an opinion making the argument for a reinvigoration of the nondelegation doctrine. If the Supreme Court were willing to agree with Justice Thomas and hold delegations to be unconstitutional, then executive power would be constrained. But unfortunately this seems extremely unlikely.
Another way delegations would be constrained is if Congress were to return to a system of limited delegations by eliminating or constraining the various regulatory statutes that delegate broad legislative authority to the agencies. Unfortunately, it seems obvious that Congress would be unwilling to do this and that the President would oppose it.
But there is yet another possibility: one could pass a cross cutting law that required congressional approval before agencies could adopt major rules. This type of law – which is known as the REINS Act – would operate to significantly reduce delegations to the agencies.
Under the Act, major regulations would have to be approved by the Congress before they could be put into effect. Each house of Congress would have an up or down vote on the regulation proposed by the agency. To minimize the time for delay and debate, the vote would be on the proposed regulation rather than on amendments that either house might propose.