The shirking Congress before the Supreme Court

For the first time in over 80 years, a majority of the Supreme Court justices want to enforce the Constitution’s requirement that the “lawmakers” in Congress vote on the regulatory laws. On Feb. 28, the justices will get their chance when the Court hears arguments in West Virginia v. Environmental Protection Agency. There’s a new way to comply with the Constitution and, having sworn to uphold it, legislators should not wait for a command from the Court. 

Heeding the Declaration of Independence’s call for government based on “the consent of the governed,” the Constitution assigned exclusively to Congress the power to make rules of private conduct so that legislators would bear responsibility in future elections. However, as later became evident, we need too many laws for Congress to make them all. So, in 1825, the Court stated that Congress could leave making minor rules to others but must provide them with guidance and itself make the critical rules.

In 1935, conservative and liberal justices unanimously struck down statutory provisions that delegated making important rules with virtually no guidance. Yet, the Court has since upheld statutes that authorize agencies to promulgate rules on important topics without meaningful guidance because the justices lacked judicially manageable tests of too-important rules and too-little guidance. 

Fast forward to 2019, when Justice Neil Gorsuch wrote a dissent vowing to construct a usable test of too-little guidance. Chief Justice John Roberts and Justice Clarence Thomas concurred. Justices Samuel Alito and Brett Kavanaugh expressed support separately, thus making a majority. Justice Amy Coney Barrett might join in.

Yet, even if justices can construct a test of the guidance required, they will fall short of their duty to enforce the Constitution to the extent they can. They should require elected lawmakers to vote on the crucial new agency laws with or without such a test because a workable test of importance has become available.

In 1993, President Clinton issued an executive order that requires an arm of the White House, the Office of Information and Regulatory Affairs (OIRA), to label as “significant” agency actions that meet any of several criteria of importance, including that the action would increase or decrease regulatory benefits or burdens by more than $100 million annually. The order has remained in effect under subsequent presidents. The Court should hold that new rules deemed “significant” cannot take effect unless approved through the legislative process. 

Unlike a delegation-with-substantial-guidance test, the important-rule test would require the “lawmakers” to vote on laws. That is essential to comply with the Constitution and make them accountable. For example, the agency’s authority to issue the regulation at issue next Monday was enacted in 1990 by legislators who have mostly retired. Besides, legislators can shift blame by claiming the agency misused its delegated power.

Congress could readily vote on agency laws deemed “significant.” As Justice Stephen Breyer demonstrated in a 1984 article, Congress could establish a fast-track process to force quick votes on agency action. The number of votes on agency actions deemed “significant” would approximate those to name federal buildings and other feel-good bills. 

In voting on agency laws, legislators would get blamed for either denying their constituents regulatory protection or imposing regulatory burdens. That would encourage legislators to rewrite statutes to prompt agencies to provide more protection for the regulatory buck.  Instead, the legislators now shape statutes to take credit for promised protection and shift blame for failures to deliver it or imposing burdens. 

The president might tweak the workings of OIRA to evade votes in Congress. Yet, such evasion would also make it easier for the next president to get rid of inherited regulations. Besides, the Court has adopted other bright-line tests that allow some room for evasion. If evasion gets out of hand, the Court could change the test to one requiring legislative approvals of all regulations unless the agency produces a finding, reviewable in court, that the regulation would not change benefits or burdens by more than $100 million annually. 

Justice Elena Kagan charged that  if the statute Justice Gorsuch’s dissent would have struck down “is unconstitutional, then most of Government is unconstitutional.” That’s true only if that statute was as precise as she claimed. Until his test is applied to many statutes, we won’t know which are unconstitutional. That would produce years of uncertainty. Meanwhile, critics would accuse justices of being political in deciding which statutes to axe. In contrast, the important-regulation test would nullify no statutes and allow important regulations as identified by OIRA to go into effect if Congress takes responsibility. Polls show that voters want Congress to take responsibility for key policies.

Instead of making modern government unconstitutional, the critical-regulation test would subject the government to “the consent of the governed.” 

David Schoenbrod is a professor at New York Law School and a senior fellow at the Niskanen Center.

Tags Amy Coney Barrett Brett Kavanaugh Clarence Thomas Elena Kagan Neil Gorsuch Samuel Alito Stephen Breyer

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