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Ilan Wurman Replies to His Critics

I would very much like to thank professors Chris Walker, Jonathan Adler, and Andy Grewal for their thoughtful and incisive responses to my “modest” (or perhaps not so modest) proposal for reforming the administrative state. Much of their criticisms, I think, will be addressed in the forthcoming, fuller accounts of this idea, but much of them will also serve to strengthen the arguments as well as a future research agenda. I will flesh out briefly some responses to the key criticisms.

The most foundational criticisms come from Professor Adler. The first of his core arguments concerns the legislative veto. “Whether agency power is deemed legislative or not, it still comes from Congress, and the Constitution prescribes how Congress may act,” he writes. Thus, regardless of whether we call what agencies are doing legislative or executive, Congress can still act only in a certain prescribed manner—through bicameralism and presentment. This is true under modern doctrine because Article I, Section 7 of the Constitution prescribes how a bill shall become law—by passage in the House and Senate and with the President’s signature—and Article I, Section 1 vests all federal legislative power in Congress. Thus, when Congress makes law, it can only do so through the strictures of Article I, Section 7. In other words, Professor Adler’s statement that the Constitution prescribes how Congress may act in this regard is only true because of the combined work of these two clauses.

But the whole premise of my essay is that we should accept the delegation of legislative power. This requires a sacrifice (that we have already made in practice) of the vesting clause. But no sacrifice of Article I, Section 7 is required.  For a law to be made, it still needs the assent of both houses of Congress and the President—but now any of these bodies can delegate their power to provide this consent. Thus a bill can become law through “passage” in both houses after both houses have delegated their power to approve of the law to legislative agencies. Congress is not acting in violation of the prescribed modes, because for a law to be made, it still needs this assent (even if delegated) of both houses. And, indeed, when it withholds its consent (through a veto), it does nothing more nor less than what it does when it refuses to take action on a bill introduced initially in Congress itself.

In short, because the criticism that the Constitution prescribes how Congress shall act is rooted in the combined work of the vesting clause and Article I, Section 7, it merely challenges the premise of my essay that we should accept the delegation of legislative power and the concomitant sacrifice of the vesting clause. If, however, we accept the premise, then the constitutionality of a legislative veto necessarily follows.

Professor Adler suggests, however, that even if a legislative veto is possible, I have given no reason why Congress would have more interest in this reform than it has shown in the REINS Act. But if we accept that a legislative veto is possible, then it clearly is more valuable to Congress than the REINS Act. The latter would require Congress to devote attention to every rulemaking, and possibly be accountable for every rulemaking; the veto power would permit Congress to choose to which rulemakings it pays attention and over which ones it will seize political control. To be sure, Congress will in some sense always be somewhat accountable when it refuses to exercise the veto, but the negative consequences of this for Congress are hardly what the consequences would be under the REINS Act if Congress failed to take affirmative action on thousands of rulemakings.

We might draw from Professor Grewal’s response in this regard. He writes that he is “concerned that much of the angst over excessive agency rulemaking powers stems from a relatively small percentage of hot-button regulatory projects. For the vast majority of projects, I doubt anything good can come from systematic House or Senate involvement in rulemaking.” I agree. But that is precisely the virtue of the model I have put forward: Congress can address those hot-button issues, and it can avoid involvement in all the rest.

Professor Grewal also suspects, however, that APA notice and comment rulemaking would become something of a “farce” with the threat of legislative action on the part of Congress, which, he writes, could just as well amend the rule entirely. This would be unfair to stakeholders who comment on the rule with the expectation that the ultimate enactment will be consistent with prior legislative mandates.

I agree that, under my proposal, Congress could make wholesale changes to existing law through its treatment of the rules put before it. There is nothing wrong with that; indeed, that is how our legislative process was intended to operate. Further, I suspect that any unfairness is likely to be minimal. Again, Congress would pass over most rules in silence—that is perhaps this proposal’s greatest virtue (it is practical)—and the APA process would operate as usual for most rulemakings. But for those hot-button issues Professor Grewal identifies, Congress should be involved, and stakeholders should be aware that Congress is likely to be so. For these hot-button issues, it is hardly clear that the administrative, notice-and-comment process is better than the traditional legislative one. Indeed, it is worse from the point of view that values political accountability and republicanism.

Along this same vein, Professor Grewal adds that a one-House veto provision would likely lead to significant gridlock. That may be, and I am agnostic about a one-House veto. Recall, however, that Congress and the President, when they pass a law delegating their legislative powers to agencies over certain classes of cases, can choose how much of their power to reserve. Congress and the President could agree to a one-House veto provision, and they could agree to a presidential veto provision; but just as well, they might agree only to a veto on the part of both houses of Congress acting jointly. My proposed Rulemaking Enabling Act, the full text of which will be available in a later writing, suggests this solution.

Now we come to Professor Adler’s second foundational criticism. How much of this proposal actually follows from a rejection of the non-delegation doctrine? And to the extent it does require such a rejection, why would anyone think this is plausible in a world in which only one Supreme Court Justice has ever suggested that we ought to recognize such a doctrinal shift? (Here we also get into Professor Walker’s chief criticism, that the proposal is wildly impractical.)

I fully agree—and indeed, I noted in my essay—that some of my proposals do not require us to reject non-delegation. That is certainly true of the judicial reforms. As for the legislative veto—perhaps the most critical of the proposed reforms—that of course does require a rejection of the non-delegation doctrine. Finally, as for the executive reforms, I noted that these do not “run afoul” of current doctrine. But what my theory does do is provide a conceptual framework that justifies them. And that is no small achievement. The ability to explain to Congress why it should delegate its legislative power to independent commissions, but why it should ensure that enforcement activities are directly accountable to the President, is, I think, a very important thing. Conceptual clarity can be very valuable.

I will end on a point made by Professor Grewal. Under this model of constitutional administration, there’s no guarantee that it will be a better world for constitutional conservatives. I happen to think it will mostly be a better one in terms of giving tools to the three branches of government to rein in the administrative state; but I agree that, in the hands of a Democratic Congress or presidency, these tools could just as well hamper conservative goals (for example, Congress could veto a deregulatory rulemaking). But I am only a partisan of conservative aims as an ancillary matter. I am first and foremost a partisan of republicanism and the separation of powers—and, I believe, constitutional administration can significantly advance these two cornerstones of constitutional government.

Perhaps this is all a fairy tale. But whether the idea is naïve or not—whether or not we should point out that the emperor has no clothes—let us not forget that he, in fact, has no clothes. We’ve simply been living in a different fairy tale. And it’s hardly clear that it’s a better one.

Reader Discussion

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on February 26, 2016 at 16:37:17 pm

In addition to other concerns that have been raised, I wonder what the blending of Article I and Article II powers might mean for review by an Article III court. As Chris DeMuth noted with respect to the REINS Act ("The Regulatory State," National Affairs, Summer 2012): "If a rule failed to secure congressional approval, that would be the end of it. If a rule were approved — passed by majorities of both Houses and signed by the president — no court would hold that it was arbitrary or capricious, an abuse of discretion, not in accord with the agency's authorizing statutes, or insufficiently justified by a demonstration of benefits and costs. Courts would rightly treat such rules as statutory law, and invalidate them only on constitutional grounds."

Faced with a rule that, while it may not have undergone full enactment, had managed to survive a close vote on a one- or two-house veto, what would a court do? Would it tell the agency, "you dodged the veto, but not my vacatur." Or might it be inclined to give legislative deference to the agency's action -- which, after all, you have labelled legislative in character. I'm afraid that judges would feel considerable pressure to allow, what Congress has considered and chosen to allow. But the result would be even more constitutionally problematic, because it would effect legislative enactments without presentation.

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Brian Mannix
on February 29, 2016 at 08:07:07 am

This is a very astute question. I *think* the answer is that the courts can still do exactly as you say -- you survived the veto but not my vacatur (a very clever turn of phrase, by the way). Certainly I think that can happen if Congress passes over most rulemakings through silence, but also if the agency survives an actual attempted veto. Congress's assent or veto can be seen as a matter of policy preference, but ultimately the agency is still making law under a delegation of power in a prior statute. Even if Congress believes the agencies are acting properly, the courts might disagree. After all, we presume that Congress takes its own interpretive authority seriously when passing a law, but that doesn't stop courts from striking down statutes they think are unconstitutional. Of course, we do defer to Congress if, all else being equal, it's an open question whether the statute is constitutional. I think we can use the same kind of presumption-of-constitutionality analysis in light of an attempted congressional veto of a rulemaking, or congressional assent through silence. The courts can defer to Congress's "assent" if, after deploying all the tools of statutory construction, they think it's an open question whether the rulemaking violates the statutory mandate from Congress.

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Ilan Wurman
on March 01, 2016 at 14:11:44 pm

[…] was provided by Ohio State’s Christopher Walker and Iowa’s Andy Grewal. Wurman was then given the last word. I’m still not […]

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Image of Can candor help curb the delegation of power to administrative agencies? – Column Catcher
Can candor help curb the delegation of power to administrative agencies? – Column Catcher

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.