Opposing radical individualism, Lawler and Reinsch look to the unwritten constitution as the key to understanding how to form citizens in a democratic age.
The modern Supreme Court presumes that when it comes to the regulation of private economic conduct, Congress can do entirely as it pleases. To be sure, exceptions exist for economic transactions that overlap with real or imagined provisions of the Bill of Rights, such as campaign finance (freedom of speech), employment discrimination (equal protection), or the procurement and sale of contraceptives and abortions (pick your favorite clause). Outside those enclaves, the sky is the limit. (Don’t say “Takings Clause”: it ain’t worth the parchment it’s written on.)
The “anything goes” presumption is affirmatively embedded in the “rational basis” test that the Court has applied, ever since Carolene Products (1938), in constitutional challenges to “economic” regulation. “Rational basis” is a misnomer, inasmuch as even obvious lunacy will not render a statute unconstitutional. But at least, the presumption is made explicit. Not so with administrative law: here, the premise of congressional omnipotence operates below the surface. But operate it does, with even more brutal force than in constitutional law. ConLaw says to Congress: do as you wish. AdLaw says to Congress: Here we are, Lord. We come to do your will.
Consider an ordinary challenge to some agency rule or order, on the grounds that the statute doesn’t permit the agency to do what it wants to do. If the statute is “clear” on the question, the case is over because both the agency and the courts must (repeat after me) do the will of Congress. If the statute is ambiguous, the agency may exercise its discretion in any “reasonable” way because that was (repeat) the will of the Congress. No indicia of any actual congressional will are needed: the courts simply assume that Congress intended the agency to go to town. This is famously called “Chevron deference.”
Short of wholesale “we’re out of here” abdication, it is difficult to envision a regime more conducive to government aggrandizement. It is child’s play to find or create ambiguity even in clear statutes, and the “Congress-intended-discretion” canon invites agencies to play that game and in that fashion to extend their reach. So it happens that a federal prohibition against the “taking” of an endangered species becomes a prohibition against “habitat modifications” that might distress members of said species or inhibit their procreation. (“Not tonight, Honey” spake Mrs. Toad to Mr. Toad. “They’re planning to build a house down the road.” The case is Babbitt v. Sweet Home Chapter of Oregon.) So it comes that a puddle becomes a “water of the United States” when a bird lands in it (United States v. Riverside Bay View Homes). So it comes that a Chemical Weapons Treaty and implementing legislation turn out to criminalize the private possession and use of vinegar (Bond v. United States; see here for discussion). And so it comes that carbon dioxide and other greenhouse gases become “pollutants” under the Clean Air Act, a statute enacted to improve local air quality and at a time when nobody had ever heard of global warming. (That decision, Massachusetts v. EPA, is actually yet more extreme: it holds that the CAA clearly requires a breathing-is-pollution interpretation.)
Are there any limits? Occasionally, a court will block agency empire-building on the grounds that the statute clearly fails to authorize the assertion of authority. (The Supreme Court’s recent decision in Gabelli v. SEC is an example.) There may still be a limit in general-purpose criminal matters, where Chevron’s go-get-‘em canon bumps into the traditional “rule of lenity”; however, one can no longer be certain of that limit. (You can’t yell “lenity” when federal statutes, such as Dodd-Frank, affirmatively command agencies to make up crimes as they go along.)
Most strikingly, there’s a limiting federalism canon or presumption, which says that Congress must not be presumed to have altered the “federal balance.” That canon operates, sporadically, when an agency stretches the outer boundaries of the Commerce Clause (e.g., Rapanos v. U.S.). It operates in federal preemption cases (e.g., Wyeth v. Levine). And it operates when Congress regulates states alongside private actors—for example, in employment (e.g., Gregory v. Ashcroft, which finds the federal statute ambiguous and then blows right by Chevron). The canon supposes that the Constitution (1) requires a federal-state “balance” and (2) was enacted for the comfort and convenience of state politicians, as distinct from citizens. In both respects, the canon supposes erroneously. Still, it reflects a glimmer of constitutional recognition—not that Congress cannot mow down the constitutional structure, but that it cannot do so without actually saying so.
Why (my colleague Jeremy Rabkin has asked) isn’t there a canon or presumption like that with respect to private activities? Excellent question.
It’s not like one couldn’t think of such canons. For example, there once was a maxim that statutes in derogation of the common law are to be narrowly construed. Thus, when an agency is empowered to regulate “fraud” or “employees,” the regulated transactions or parties must look, presumptively and more or less, like the common law background against which Congress legislated. That rule of construction, though, is effectively dead and gone. As Cass Sunstein and others have explained, the rule embodies a preference for private orderings, which sits poorly with our let’s-put-everything-up-for-grabs Constitution. Also, it would favor regulated parties over regulatory beneficiaries and if that were to happen freedom might break out and so QED. (I am not making this up; references upon request.)
Alternatively, one could say something like this: when agencies expand their jurisdiction over toads, puddles, or bovine flatulence—and, in the process, over vast swaths of the economy—that isn’t the sort of “discretion” Congress willed or can be presumed to have willed. Thus, when agencies interpret the scope of their own jurisdiction, they can’t get deference. However, the law is to the contrary. A very small handful of decisions suggest that in cases of really big expansions of agency jurisdiction, Congress should say of word of approval or at least audibly clear its collective throat. The leading case is FDA v. Brown & Williamson, where the Supreme Court blocked the FDA’s unilateral attempt to regulate nicotine as a drug and cigarettes as a “delivery device.” Alas, Massachusetts v. EPA overruled that case in all but haec verba.
There is no fix for statism in legal drag so long as judges and the legal profession keep babbling about “deference” to the “will of Congress.” It would be much better to start at the opposite end—with the will of citizens to go about their business without unwarranted molestation. It’s only a presumption. But it would be a constitutional presumption, and a useful one at that.