Mar 07 2017
Thank you for that kind introduction, Neomi. Thank you to the Center for the Study of the Administrative State for putting this event together. And thanks to all of you for being here today.
I always appreciate the opportunity to talk about federalism, the separation of powers, and the administrative state. But it is a special honor to do so as a guest of the Antonin Scalia Law School. What a fantastic name for an institution.
And it’s fitting that an institution bearing the name of the great Antonin Scalia would host this discussion.
Throughout his legal career, Justice Scalia was an avid student of the regulatory state. He even left a lucrative career at a law firm to teach administrative law for a few years at the University of Virginia. But he understood that not everyone shared his passion for the topic.
In 1989, Justice Scalia delivered a lecture at Duke Law School in which he began by warning his audience, “Administrative law is not for sissies – so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.
Now, I don’t think Justice Scalia was actually capable of delivering a dull lecture, no matter how dry or tedious the subject matter. But there’s no doubt that even most lawyers and law students consider administrative law to be among the least riveting areas of the law.
I think this is partly because the bureaucracy tends to be seen as one of the least interesting areas of government – far removed from the action, drama, and excitement of politics.
Members of Congress work in the awe-inspiring and iconic Capitol Building. The president lives and works in the White House, the world’s most famous symbol of power and prestige.
Executive-branch bureaucrats work in… the HHS headquarters, and the Labor Department – nondescript, Soviet-style concrete slabs that look more like nuclear vaults than government buildings.
But of course, the bureaucracy’s reputation for irrelevance has never been deserved – especially not today.
Just look at how the administrative state is revolting against the results of last year’s election.
Set aside for a moment your opinions of General Michael Flynn and the allegations about his relationship with Russia. It should profoundly worry everyone how Flynn was run out of Washington.
Let’s not mince words here: current and former national security officials used the spying power of the surveillance state to silence a political enemy who threatened their status quo.
This is the type of behavior we would expect in a banana republic, not a healthy democracy.
And our domestic agencies are proving to be just as eager to use their immense power to try to overturn the results of last year’s election. After President Trump nominated Scott Pruitt to head the Environmental Protection Agency, the union representing the EPA’s 15,000 employees organized a campaign to pressure the Senate to reject him.
One of those 15,000 employees told The New York Times, “It seems like Trump and Pruitt want a complete reversal of what [the] E.P.A. has done. So it’s in our interests to do this.”
And whose interests are those exactly?
Certainly not the interests of the American people.
No, in this case “our interests” refers to the narrow partisan agendas of the numerous unelected bureaucrats who work in the byzantine web of rule-writing agencies, departments, and bureaus of the administrative state – which is technically a creature of the executive branch, but is increasingly operating as an autonomous and unaccountable fourth branch of government.
And the EPA is not the only administrative agency going rogue. After the Senate voted to use the Congressional Review Act to repeal a recent regulation issued by the Interior Department, the director of the department’s Office of Surface Mining Reclamation and Enforcement told Politico, “I believe there’s a good chance that [...] a court will overturn Congress’ actions here.”
And on what grounds might a court render such a judgment, according to this official at the Interior Department?
Because Congress’s action is “an unconstitutional usurpation of the executive branch’s powers.”
The constitutional illiteracy of this statement is simply breathtaking – and it would be funny, too, if it weren’t so prevalent within the federal government today.
How did this happen?
Article I of our Constitution states in no uncertain terms that “All legislative power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
And for the first hundred years or so of our republic, that is basically how it worked. Congress made the laws and the executive branch enforced them.
But in the beginning of the 20th Century, as the so-called progressive theory of government gained traction among university professors and political elites, the strict separation of government powers established in our Constitution began to be undermined.
By the time of his first inaugural address, President Franklin Roosevelt was able to confidently – and happily – announce that the Constitution should be changed.
He said the Depression should be treated “as we would treat the emergency of war.”
And he told the country that a return to economic stability would require “a trained and loyal army willing to sacrifice for the good of a common discipline,” and ultimately to “submit our lives and property.”
Roosevelt warned that under this new war-time discipline, “it may be that an unprecedented demand and need for undelayed action may call for [a] temporary departure from the normal balance of public procedure.”
But, as it turns out, there was nothing temporary about what President Roosevelt did. And the United States has been steadily departing from the normal balance of public procedure ever since.
The other two branches of government, the legislature and judiciary, did not take this upending of our constitutional order entirely lying down.
Subsequent Congresses were not as willing as Roosevelt’s first to give his slew of new federal agencies a blank check to create new laws. And Roosevelt infamously had to threaten to pack the Supreme Court before the judicial branch came to an uneasy truce with this new regime.
It wasn’t until Roosevelt died and President Truman came to power that the government adopted a more systematic and codified framework that set the ground rules for America’s burgeoning administrative state. The cornerstone of this framework was the Administrative Procedures Act (APA).
Under the APA, Congress could delegate broad lawmaking powers to executive-branch agencies. To adjudicate this new and delicate sharing of lawmaking authority, the courts had the jurisdiction to review the propriety and scope of agency rule-making.
At the same time, in an effort to retain as much of its legislative authority as possible, Congress began inserting more and more “legislative veto” provisions into these otherwise broad grants of power.
This framework was not completely static over the next 40 years, but in the 1980s two Supreme Court cases fundamentally changed the balance of power between the branches.
First, in 1983, the Court held in INS v. Chadha that legislative veto provisions were unconstitutional because they amounted to a second legislative act, thus violating the Presentment Clause of the Constitution.
Then a year later, in Chevron U.S.A. v. Natural Resources Defense Council, the Supreme Court held that in cases involving ambiguous statutory language, the court must defer to the agencies’ interpretation of the law rather than provide its own.
Now, I think that Chadha was correct. But taken together these two cases caused a substantial transfer of power from the legislative and judicial branches to the executive branch.
Stripped of the power to veto regulations issued by executive agencies, Congress lost one of its most powerful tools to control federal bureaucrats. And in many cases, the courts could no longer question whether an agency rule exceeded the authority granted to it by the legislative branch.
It took some time for the implications of these rulings to sink in, but the past eight years have been like a case study of what happens when government officials are insulated from public control and emboldened by a president willing to implement an ideological agenda by whatever means necessary.
When Congress refuses to pass climate-change legislation to the president’s liking, suddenly the Clean Air Act gives the EPA the power to do so on its own.
When Congress refuses to pass an immigration amnesty bill, suddenly the Immigration and Naturalization Act of 1965 gives the Department of Homeland Security the power to grant work permits to illegal immigrants.
And when Congress refuses to pass legislation adopting common core as the national education curriculum, suddenly the No Child Left Behind Act can be used to coerce states to accomplish the objective.
As President Obama loved to say, “If Congress doesn’t act, I will.” And he did, in one policy area after another.
But this is not how the Constitution works. It’s not even how the APA is supposed to work.
The golden rule of republican government requires that the nation’s laws be made by representatives who are elected by the people. The stability and legitimacy of our system depends on it.
The modern regulatory state flips this constitutional logic on its head, severing the lines of electoral accountability and consent that connect the people to their government.
The most pernicious consequence of this concentration of power in the executive branch – and its insulation from democratic accountability – is the deep and bipartisan distrust that Americans hold toward their government.
But with President Trump in the White House, elected on a promise to “drain the swamp,” we have a unique opportunity to regain that trust.
Today, I want to highlight three pieces of legislation that will begin that process by reinvigorating the separation of powers at the heart of our constitutional system.
First, the REINS Act – which stands for “Regulations from the Executive in Need of Scrutiny” – would help restore the balance between the executive and legislative branches by requiring congressional approval for any new regulation that would impose $100 million or more in compliance costs on the American people.
Under this law, the specialized and technical know-how of executive-branch agencies would still contribute to the regulatory process, but ultimately Congress would be responsible for every major regulation that went into effect. This would make it easier for American voters to know who to blame when policies go bad.
Next, the Separation of Powers Restoration Act would functionally overturn the Chevron doctrine by reinstating federal judges’ power – and, indeed, obligation –to interpret executive-branch regulations. Specifically, the bill would amend the APA and require judges who are hearing challenges to agency actions to review all relevant questions of law “de novo.”
In other words, the Separation of Powers Restoration Act would end the dysfunctional status quo that tilts the legal playing field in favor of federal bureaucracies.
Finally, the Agency Accountability Act would make federal agencies accountable again by directing most fines, fees, and unappropriated proceeds to the Treasury, instead of letting federal agencies keep and spend them as they see fit.
The Constitution gives Congress, and only Congress, the power – and the responsibility – to direct federal spending of taxpayer dollars. This power of the purse is one of Congress’ most potent tools for controlling federal bureaucrats, which is why so many agencies have sought to secure their own revenue streams that allow them to operate free from the scrutiny and accountability of congressional oversight.
Passing the Agency Accountability Act would go a long way toward putting Congress – and by extension, the American people – back in charge of how federal bureaucracies can spend money.
Now, if you’ve sat through a three-hour conference on regulatory reform, you probably already believe that the issues we’re talking about today are vital to the future of the American republic.
But let’s be honest, when most people hear the words “regulatory reform” their eyes gloss over and they tune out. Justice Scalia was right: “Administrative law is not for sissies.”
But the administrative state – its immense powers and increasing disregard for constitutional and legal limits – matters to everybody. And if we’re ever going to reform it, we need to start explaining why.
The American people are primed to hear this story. Thanks to technology, globalization, and mass immigration many Americans increasingly feel like they’re no longer in control of their lives. And thanks to the administrative state, they know they’re not in control of their government either.
The good news is that we can begin to change all that. If we are able to pass even one of these legislative reforms – the REINS Act, the Separation of Powers Restoration Act, or the Agency Accountability Act – then we will have begun to make real progress toward returning power to the people.
And if we can do more – if we can pass all three bills – it would constitute a fundamental shift of power in this country… a transfer of power – to paraphrase President Trump’s inaugural address – not merely from one party to another, but from Washington, D.C., back to the American people.If you’re here today, you’re in a position to help. So, I invite you to join me in this effort to restore democratic accountability in Washington and to rebuild our government of, by, and for the people.