Bodychecking the Administrative State

It’s been great fun blogging at LibertyLaw this month, and I thank Richard Reinsch for the opportunity to opine. As I conclude my tenure as guest blogger, I want to respond to some of Greg Weiner’s very interesting and provocative suggestions about Congress and the administrative state. He is right to focus on Congress as the centerpiece of any successful reform movement, but I have a few tentative hesitations about his suggestions.

Weiner’s primary solution (his “real solution”) to the problem of Congress’s delegation of power to agencies is “legislative elbow-throwing.” (What he calls “bodycheck constitutionalism.”) This involves Congress refusing to fund the executive branch and refusing to delegate any further power to agencies by passing new laws. Both of these actions, he notes, can be taken by only one house of Congress.

In my view, the problem with option 1 (stop funding the agencies) is that it perverts the legislative process. First, I think there are rule of law problems with the “defunding” craze. If there is a law on the books setting up a program to be administered, the refusal to fund its implementation seems problematic.

Second, as Congress learned very early in its history, mixing appropriations with policy creates perverse incentives. By binding a policy provision to “must-pass” appropriations bills, advocates of a measure that would not pass on its own are able to sneak it through Congress. And without a line-item veto in the executive the vulnerable provision cannot be extracted from the bill and eliminated if it does not advance the public interest.

In short, using appropriations riders to make policy, by refusing to fund certain agency rulemakings or programs, prevents deliberation and regular order in Congress. This is why people like John Quincy Adams railed against such actions in the 1830s and established a rule (frequently waived today, of course) against including policy in an appropriation. This rule (were it enforced) provides a salutary check on attempts to smuggle policy into law without deliberation by including it in bills that must pass.

The idea of refusing to fund agencies will be subject to some of the same issues. Appropriations bills must pass, and this puts pressure on Congress. In such a situation, their institutional incentive to fund the government tends to trump objections to particular agencies. Decisions, in other words, will be made not deliberatively on the basis of particular programs or issues, but based on the collective pressure of the whole Congress to get something done.

Pursuing option 1 will deal a further blow to deliberation and regular order in Congress, and may actually exacerbate the problem.

The problem with option 2 (stop delegating new authority to agencies) has to do with administrative law. Now that the Supreme Court has abandoned the nondelegation doctrine broad statutory mandates to regulate pollution and workplace safety are the norm.

In this situation, no further delegations are necessary. All the agencies have to do is fit new regulatory programs within the broad contours of the delegations already enacted. For instance: though the Clean Air Act was originally designed to regulate smog, the definitions are so broad that the EPA can now regulate greenhouse gases within its regulatory power under the Act.

In short, Congress has already delegated so much power that the agencies don’t need much more to be delegated in the future. Thus, a single house of Congress is relatively powerless to check future assumptions of power by agencies – it’s already there, in some statute or another, and the courts are likely to allow this process of statutory interpretation to continue. (Maybe Brown & Williamson signaled an end to this, but Mass. v. EPA pointed in a different direction.) To reiterate: the single house of Congress check didn’t work to prevent regulation of greenhouse gases by EPA.

My hesitations regarding option 1 are tentative and I am open to the possibility that the administrative state might trump niceties about keeping funding and legislating in separate processes. But the problems with option 2, I think, are insuperable. Congress has given up so much at this point that the refusal to delegate further is hardly a threat to administrative power.