Can we instill classical liberal principles in administrative law?
Every year, I teach the 1976 case of Buckley v. Valeo in my Administrative Law class – not the portion that involves campaign finance regulation, but the part that concerns the Appointments Clause.
Congress had established the Federal Election Commission, which was an independent agency with significant power to administer the campaign finance laws. Congress, however, had adopted a novel method for appointing the six voting members of the Commission. It provided that
two members are appointed by the President pro tempore of the Senate “upon the recommendations of the majority leader of the Senate and the minority leader of the Senate.” Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress.
This method of appointing the commissioners obviously departs from the Appointments Clause of the Constitution. The Appointments Clause provides that the President may appoint an officer with the advice and consent of the Senate. (It is true that the Clause does specify other methods for the appointment of inferior officers, but the commissioners, who run the agency, are clearly not inferior officers.)
The Supreme Court looked at this appointment method and held it to be unconstitutional. Clearly neither the Speaker of the House nor the President pro tempore of the Senate is allowed to make appointments. Moreover, the House of Representatives should not have a role in confirming the nominees.
What is at first glance puzzling is that the Congress should have thought it could get away with this method of appointment. But the explanation seems clear enough. From the middle 1930s until the Buckley case, the Supreme Court adopted an extremely lenient attitude towards the separation of powers. As it had in the federalism cases, the Court did not admit it was not enforcing the constitutional limitations; instead, it applied those limitations in an extremely lenient way. The main case where the Court had struck down an action on separation of powers grounds was the Steel Seizure Case, and that had involved unilateral action by the President. The most influential opinion in that case, the concurrence by Justice Jackson, had as its main theme that when the legislature authorized the executive to take an action, liberty was essentially protected. Thus, one could imagine that the liberals in Congress in 1974 could believe, as sophisticated observers of the Court appeared to, that departures from the constitutional text by the Congress would be allowed.
But happily it turned out not to be true. In Buckley, the Supreme Court started to enforce the separation of powers, and the case was followed by other significant ones, such as Chadha and Bowsher. It would be almost 20 years until the Supreme Court started the process of enforcing enumerated powers provisions of federalism.