The Eighth Annual Executive Branch Review Conference was held on April 28, 2020 via an online webinar. The final panel was titled "Restoring the Legislative Power: The Role of Nondelegation Doctrine and Legislative Vetoes"
In Federalist Paper No. 51, James Madison argued that a system of checks and balances between the federal branches of government was vital to the health and safety of our constitutional republic. While discussing how the relationship between these separate branches of government should endure, he specifically highlighted the Legislative branch by saying “In republican government, the legislative authority necessarily predominates.” Many in the realm of Constitutional law and governmental policy have argued the balance of power has shifted from the legislature, rendering it less powerful than the founding fathers intended. Some argue this power has been ceded largely to the Executive branch, arguing for more aggressive use of the legislative veto to keep the Executive branch in check. Others argue that the gradual weakening of the non-delegation doctrine has led to the administrative state usurping much of the power once thought solely in the realm of congressional authority. Proponents of the administrative state and of the Executive branch believe these changes are merely a reflection of modern times, and that Congress still has significant and final authority over federal law.
This elite panel of experts will explore the issue in depth, touching on various aspects of the debate, and presenting a wide variety of viewpoints. The panel subject matter promises both to be enlightening and educational for lawyers and policy makers alike.
- Prof. Jack Beermann, Harry Elwood Warren Scholar and Professor of Law, Boston University Law School
- Prof. Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law; Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law
- Prof. David S. Schoenbrod, Trustee Professor of Law, New York Law School
- Prof. Christopher J. Walker, Professor of Law; Director, Washington, D.C., Summer Program, The Ohio State University Moritz College of Law
- Moderator: Mr. Thomas G. Hungar, Partner, Gibson, Dunn & Crutcher LLP
- Introduction: Dean Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Dean Reuter: Welcome to The Federalist Society's Executive Branch Review Week Webinar Series. Your telephones and computers have been muted until the question and answer portion of our program.
For those of you who have tuned in today for CLE, please make sure that you visit our CLE information page, which can be found either on your registration ticket or on the EBR 8 Week webpage at fedsoc.org or on the individual event page for this panel also located at fedsoc.org. Those pages have vital information and step-by-step directions on how to receive CLE for this program.
For now, please make sure to sign in at the CLE link available on the webinar page for this panel, which is also being made available in the chat for this program. Please take time over the next 10 minutes to fill out your name and hit submit, and you can avoid some problems.
I will return in the middle of our program with a special CLE code, so you might want to have pen and paper ready to write down that code to prove to your bar association that you actually listened to the webinar.
But welcome to our third panel which is entitled, "Restoring Legislative Power: The Role of the Nondelegation Doctrine and Legislative Vetoes." I'm Dean Reuter, Vice-President, General Counsel, and Director of Practice Groups at The Federalist Society. I'm very pleased to welcome you all here and welcome all of our guests. I'm also honored to welcome our moderator.
We have a moderator for this panel, Tom Hungar, Thomas Hungar. He's a Partner at the Washington D.C. law firm, Gibson, Dunn, & Crutcher, an elite litigator with a strong government background and I think extremely well-positioned as former counsel to the House of Representatives to [inaudible - no audio 05:03].
They'll speak. They'll each have five minutes for opening remarks, but then, as always, we'll be looking to the audience for questions at about the 45-minute mark or so. With that, Tom Hungar, the floor is yours.
Thomas G. Hungar: Thanks very much, Dean. It's a pleasure to be here virtually with all of you to hear from our distinguished panelists on this important topic, which is made, if anything, even more timely by the exigencies of our current circumstances.
My time at the House impressed on me the many ways in which Congress is unable or unwilling to reign in the ever-expanding power and influence of the administrative state. And in the current national crisis, one could easily get the impression that Congress's only role is to squabble over how much more money it can spend than it actually has.
So one of the side effects of the pandemic may be to bring into ever-sharper focus the reality that in our modern United States with its vastly expanded and empowered federal Executive Branch, the Legislative Branch has fallen arguably far short of fulfilling the role envisioned for it by the Framers, and some would say it hasn't even tried.
To discuss these and other issues and hopefully identify some solutions or maybe say there isn't a problem, I don't know, we are privileged to have a highly qualified panel of experts, beginning with Michael Rappaport, who is the Darling Foundation Professor at the University of San Diego School of Law, where he also serves as Director of the Center for the Study of Constitutional Originalism. His areas of interest include originalism, separation of powers, federalism, and super majority rules. He teaches administrative law, constitutional law, constitutional history, and legislation.
Our next panelist speaking will be Jack Beermann, the Harry Elwood Warren Scholar and Professor of Law at Boston University Law School. His scholarship focuses on civil rights litigation and administrative law. He teaches ad-law, civil rights, [inaudible - no audio 07:06] law. He's a member of the Administrative Conference of the United States. And I found this interesting, among his many writings is an article examining civil rights violations in a popular ‘90s TV police drama, NYPD Blue. I don't know if I'll have a way to get that in, but I'd like to read that one.
Chris Walker is Professor of Law at the Ohio State University Moritz College of Law and Director of the Moritz Washington, D.C., Summer Program. His research focuses on administrative law, regulation law and policy at the agency level. And he teaches ad-law, civil procedure, constitutional litigation, federal courts legislation, and regulation. He is also [inaudible - no audio 07:48].
And our final panelist is Professor David Schoenbrod, Trustee Professor of Law at New York Law School. His scholarship focuses on congressional relations with regulatory agencies, the law in politics of regulation, environmental law, and remedies, among other subjects. His most recent book is, "DC Confidential: Inside the Five Tricks of Washington," which shows how politicians take credit for popular promises while avoiding blame for unpopular consequences. I'm shocked - shocked to hear it.
We'll start with short introductory remarks from each of our panelists and then followed by discussion and audience Q&A. Professor Rappaport, please start us off.
Prof. Michael B. Rappaport: Thanks, Tom. So this panel concerns the nondelegation doctrine and the legislative veto which are two ways of transferring policy making from the Executive to Congress. And here, I want to explain why I favor a combination of the nondelegation doctrine and the REINS Act.
So my preferred approach to enacting regulations is to have Congress itself pass them, which could be accomplished through a strict nondelegation doctrine. Now, congressional lawmaking has various benefits. First, it ensures a certain amount of consensus support for regulations since laws will often have to get the support of both parties due to divided government. By contrast, agency rulemaking allows agencies, which often display tunnel vision and extreme views, to enact regulations.
A second benefit is that congressional law making is actually likely to reduce partisanship. Under delegation, the content of regulations is largely determined based on the President's views. Presidents tend to have the relatively extreme views of the median voter of their party. By contrast, with congressional law making, the prevalence of divided government means that regulations will only be passed if the two parties reach a compromise. And therefore, the regulations will tend to reflect the views of the median voter of the country. Thus, congressional law making will involve less extreme regulations, more compromise, and therefore, less partisanship.
Now, some people criticize congressional lawmaking on the ground that Congress will not be able to produce a sufficient number of regulations. While congressional lawmaking will make it harder to pass regulations, I see this as a feature, not a bug. Government has a tendency to grow too large, and this places a bit of a break on it.
But while congressional lawmaking makes it harder to pass regulations, Congress could still pass a sufficient number of regulations for a small government world if we still lived in one. Unfortunately, congressional lawmaking could not work in our current world, which has been built upon delegations to agencies to pass many thousands of regulations.
But while we cannot go back to legislative enactment in a short run at least, a more limited reform modeled on the REINS Act would be feasible. Under this reform, agencies would write the regulations, but the most important regulations would not take effect unless both the Senate and the House approved them.
Congressional rules would require each House to vote on these important regulations. Now, while the REINS Act has certain problems, it would operate to place responsibility on Congress and significantly restrain the agencies. And thus, it would be a big improvement on the existing system of delegation.
The legislative veto would be the least al reform in my opinion, even putting to the side that it is unconstitutional under both the original meaning and the court's precedents. It's true that the legislative veto would give Congress more power to review agency regulations, but it would also allow Congress to continue to avoid responsibility of legislating.
While the REINS Act requires both Houses to vote on major regulations, there is no requirement under a legislative veto that the Houses vote on regulations. For a variety of reasons, the speaker or the senate majority leader might not schedule a vote or the relevant committee might not report out the regulation for a vote. Thus, the legislative veto might operate to insulate members of Congress from responsibility for passing or not passing regulations.
In the short term, I believe that the best approach is to use the REINS Act. But the main problem with the REINS Act is that Congress does not want to adopt it. After all, one of the main reasons we have delegation today is that members of Congress want to avoid responsibility for legislating. Since the REINS Act would force members to accept responsibility, it's unlikely to be enacted.
But the Supreme Court could force Congress's hand. The Court might hold that the nondelegation doctrine requires Congress to make the basic policy decisions. The Court even could explain that one of the ways to satisfy the nondelegation doctrine is through something like the REINS Act. And in this way, the Court might actually induce Congress to adopt the Act.
Okay, that's all I got. Let me hand it off, then, to Jack Beermann.
Prof. Jack Beermann: Thank you, Michael. I appreciate those comments, and I want to thank The Federalist Society for inviting me here. I've been attending meetings since the beginning in the early 1980s, and this is not the first time I've spoken on a Federalist Society panel, but this is the first time that I've spoken wearing short pants. So it's really a pleasure to be here.
Now, I'm going to make two points and expand on them. The first point is that there is no nondelegation doctrine in the U.S. Constitution. And the second point is that there's nothing to worry about because Congress is completely in charge and completely accountable for everything that happens when the Executive Branch executes the law. So no nondelegation doctrine and nothing to worry about anyway.
So on the first point, there is no nondelegation doctrine in the Constitution. It's a creation of the Supreme Court and how strict it applies is a measure of how activist the Court wants to be at any given time vis-à-vis the Congress. Arguing to revive it is an attack on Congress, not an effort to restore power to Congress.
Congress is in charge of making law, and the President's primary duty is to execute the laws as made by Congress. That includes legislation establishing the structure of the federal government, so long as no explicit procedural or structural provision of the Constitution is violated for example, like allowing members of Congress to make agency appointments or allowing less than the full Congress to take actions with legal effect, which will be my sole mention of the legislative veto.
Now, there is a doctrine of ultra vires, which is exemplified by the Steel Seizure case and the litigation over the Obama administration's deferred action in immigration programs. Government needs a law from Congress to act. And in written word, I've explained why cases in which the Supreme Court actually invalidated legislation based on the delegation norm are different in kind from anything ever upheld with no intelligible principle whatsoever, which in my view is virtually the same as saying that it was ultra vires, that there was no enabling act that gave the Executive the instructions and power to operate.
Justice Scalia was right about the nondelegation doctrine, that it's really a non-justiciable norm. And the current law fully satisfies Justice Rehnquist's three concerns over delegation, which he so eloquently expressed in his Benzene case concurrence.
Now, on the second point that there's nothing to worry about. The hundreds of cases in the federal courts invalidating agency action for exceeding statutory authority or violating standards established by Congress demonstrate conclusively that Congress is in charge of the administrative state. And the accountability crisis is just a boogey man in the closet, like the popular accusations that I heard last night on Hannity that the Democratic party is made up of a bunch of reckless socialists.
The only time Congress is not accountable is when the president acts without statutory authority. And there, the courts are more than willing to make sure that in such cases, the president has some other source of authority, such as the Constitution. So Congress is in complete control, and judicial review, in most cases, aids in enforcing Congress's will except in periods when the courts get too full of themselves and go off on their own adventures. But the courts don't allow Congress to abdicate. When they get active, they actually go too far in preventing Congress from performing its legislative function.
Now, the -- I want to give two examples about this. The first is last week's decision on groundwater pollution which involved a technical question of environmental law about whether certain discharges of groundwater into wells which then ran into a navigable water were covered by the Clean Water Act. And I want to just quote some language from the Supreme Court which I think really supports my view of how the Court actually is Congress's effective agent when it's acting properly.
"But here, as we have explained, to follow EPA's reading would open a loophole allowing easy evasion of the statutory provision's basic purposes." Such an interpretation is neither persuasive nor reasonable. This confirms, in my view, that the abandonment of the extreme version of Chevron is part of what I called in a paper some years ago the turn towards Congress in administrative law.
And another example, and here I'm going to have to disagree with my former boss and co-author, Ron Cass, is the decision invalidating -- the Supreme Court decision invalidating the decision to add a citizenship question to the Census. "In the Administrative Procedure Act, Congress instructed the courts to set aside agency actions that are arbitrary or capricious. Whatever that means, it certainly includes rejecting a decision in which the decision maker lies about his reasons for making the decision."
That's just, to me, the definition of capricious, when you can't even tell the truth about why you're doing it. And that decision also keeps Congress in charge and tells the Executive Branch to follow the law including the standards of judicial review in the Administrative Procedure Act.
Now, the nondelegation doctrine, as currently being deployed, is not a concern over accountability. No one in our polity misses the point that Congress is to blame. The problem is that everyone hates Congress, and everyone loves their own member because their own member is connected to the local communities' values and brings home the goodies, in the form of pork or whatever. And also, because Congress has brought deficit spending to high art, which is great. You get things for free, only our grandchildren will have to pay for that.
Rather, as the nondelegation doctrine is being deployed and used to justify proposals like the REINS Act, which Michael referred to, it's a barely concealed effort to shut down regulation, which should be done directly by Congress rather than through an increase in judicial power based on a creation of the court in constitutional law.
Congress won't cooperate with this because at the end of the day, regulation is a giant social plus and also provides Congress with a way to hand out the goodies. And much of the opposition to regulation comes from the subjects of regulation who resent having their activities curtailed or their profits reduced in the name of the greater social good.
Again, most of the writing in favor of reviving the nondelegation doctrine is actually asking for the construction of a new norm that never was. The norm of judicial control of agency action or Executive Branch action designed to stymie regulation rather than actually restore accountability to Congress.
If people love Congress but hated agencies, I might join in those concerns. But people hate Congress just as much if not more as they hate any part of the U.S. government. And why? Because our safety net is too porous and not wide enough, and our regulation is too weak with too many loopholes and with enforcement overly politicized.
Now for others, it is because they have an unrealistic expectation of the role of government in the modern world, cultivated by irresponsible politicians and media. We don't share anymore civic norm of making our country and the world a better place. Instead, too often, we have greed and hunger for power as the defining factors of how we are governed. And this has only gotten worse in recent years.
Thank you. And now, I'll hand it over to Chris Walker.
Prof. Christopher J. Walker: It's always a pleasure and a challenge to follow Jack Beermann on any panel. I think this is probably the, I don't know how many times, at least a dozen or so times that I've had to do that.
I'm going to save the debate about the nondelegation doctrine that Michael and Jack have been having for the Q&A, and I'd like to shift our focus to talk about another issue of delegation that is overlooked in the debates about the nondelegation. And that's something that Jonathan Adler and I have called the problem of time.
We have a paper coming out later this summer in the Iowa Law Review where we argue basically two things. One, when we're talking about nondelegation, folks concerned about congressional delegation to agencies should care a lot more about time and not just about the breadth of delegation. The conventional congressional judicial responses to nondelegation and delegation have generally focused on the breadth of the delegation at issue. And we argue that while that's important, there should also be a focus on the temporal aspects of delegation.
And then the second main contribution we make in the paper is that we should also -- one way to do this is to return to a more regular practice of reauthorization of statutes that govern federal agencies. Congress won't do this on their own, and so in the paper, we flush out some different ways for Congress to use this tool more. And I'll talk a little bit about that in my introductory remarks here.
But getting back to nondelegation itself, this is a doctrine -- a very hot topic in light of Gundy v. United States last year in which the Supreme Court had a number of justices express an interest in reviving the nondelegation doctrine. And then Justice Kavanaugh, shortly thereafter in a statement regarding denial of cert, flushed out his interest as well. So we know we have at least five justices have expressed an interest in reinvigorating the nondelegation doctrine. And so I think we're going to see more and more discussion about this.
But when you look at what actually is happening on the ground, the nondelegation doctrine itself is dealing with the breadth of delegation, or as Justice Kavanaugh put it in his statement, "major questions that Congress tries to delegate to agencies." But today, we also have an issue of time.
Congress is not legislating very often. We've shifted from an era of lawmaking by statute to an era of lawmaking by regulation. And we have a number of very, very stale statutes that agencies are trying to adapt to modern problems that they weren't contemplated by the Congress that enacted that statute.
Two classic examples that come to mind are the Federal Communications Commission trying to regulate the internet with a statute that was last amended in major focus before wireless emerged in the 1990s. And then of course, we have the EPA and the Clean Air Act and Clean Water Act trying to—especially in the Clean Air Act context—address issues of climate change with a statute that Congress wasn't even thinking about those types of problems.
And so what we need to think about more is how do we get Congress to legislate -- to practically legislate? Now, Michael mentioned the idea of the REINS Act as being one way. That would be, if enacted, would require regulations to get approval by Congress before they went into effect, at least for major regulations.
Jonathan and I don't tackle that in our paper too much, but one of our reactions is that's still a Congress that is very reactive and not proactive, that they're reacting to what the administrative state does. And we think it's more important for Congress to actually be acting proactively, reviewing how agencies act, their scope of authority, help agencies address new problems through additional congressional delegations.
So I have a minute left, how do we do this? I've given you the link in the chat box to our longer paper where we explore this. But what we do is we revive the idea of sunsets of temporary legislation of encouraging Congress to set time limits on legislation where they have to revisit them and see what happens. This already happens in a number of different contexts, and we explore at least a dozen of them in the paper.
But we argue that Congress should really brush this tool off and start using it more. Now, the devil's in the details here. It's not that we're saying that there should be a blanket default sunset where everything disappears. We make a much more nuanced argument that congressional committees should set defaults that would be toxic to multiple interest groups to force reauthorization.
But we really do think that if what we care about is a democratically elected body being the primary lawmakers, we really do need to get Congress working again with agencies to address these issues.
I'll just end real quickly with this has the additional benefit of not just getting Congress to be more engaged in the process but it relieves a lot of the concerns that some of us have about Chevron deference. I think courts will be much more willing to defer to agencies if they knew that Congress was going to actually revisit interpretations by agencies that have problems. And also, I think you'd also see less concerns in statutory stare decisis as well if we knew that Congress is actually revisiting the decisions and interpretations that courts make.
So I'll end it there. Happy to talk more about this in the Q&A. Oh, and I'm supposed to send it along to David. Sorry, thanks.
Prof. David S. Schoenbrod: Thank you very much, Chris.
The nondelegation doctrine is often portrayed as a ploy to deny the public what it wants, which is -- it said regulations designed by experts, but that's just wrong. The public wants Congress to vote on major regulations. That is what eight out of ten voters told pollsters in a poll taken last year.
This year, an open letter to the current Senate from 70 former senators, including 47 Democrats, said, "Congress is not fulfilling its constitutional duties." The letter went on to state that Congress allows "the Executive Branch to effectively legislate on its own terms through Executive order and administrative regulation."
So why do incumbents and Congress not do what voters and their predecessors in office want? Here's why. In voting on regulatory rules, the incumbents would have to become responsible for the degree of regulatory protection granted and the amount of burdens imposed. But they have a more politically attractive option. They take credit for enacting statutes that set high regulatory goals, and then they delegate to the agency the duty to issue the rules needed to achieve those goals. And then they take contributions from business to lobby the agency not to do that. And when I was representing the environmental side in the cases to get lead out of gasoline, progressive Democrats were taking contributions from industry to thwart protection of health from lead.
And then the members of Congress have the temerity to blame the agency both for failing to achieve the regulatory goals and the burdens imposed. Now, by allowing members of Congress to take credit and shift blame, delegation encourages them to design statutes to give themselves the most political credit and the least political blame.
If in contrast, they had to vote on the regulatory rules themselves, they would want rules that gave constituents the most protection for the buck. So delegation creates a conflict of interest between legislators and their constituents. Take, for example, environmental statutes. They are now perfect for members of Congress because they let them take credit and shift blame, yet avoid accountability for the hard choices.
So Congress has zero incentives to update them. Most have gone unamended for 30 years or more. Richard Stewart, former chair of the Environmental Defense Fund, Katrina Wyman, his colleague at NYU, and I headed a project in which we showed the environmental statutes were woefully obsolete and recommended to Congress how to update them to produce more benefit for the public.
When Dick and I went around Congress talking to people about our proposals, Democrats and Republicans alike said god, we wish your ideas had been enacted, but they're not going to be enacted because the members just don't want to be responsible. That's what they told us at Capitol Hill. And this produces just terrible consequences for the public.
Here is one example, okay? It's the regulation by EPA of ozone and particulate matter. The current statute does pretty good. It cuts ozone and particulate matter by half over the term of the 1990 act, and that, according to the EPA, would lengthen the life expectancy of the average American youngster by six months.
But if the statute were amended like we're talking about to create a national market-based program for regulating these two pollutants, we could cut that pollution by another quarter. In other words, we could cut it by three-quarters, which would make the life expectancy of the average American youngster increase by three months.
So in other words, the failure to do this has a far bigger effect on mortality than the virus crisis we're going through now. And it ain't getting done because it's just better for members of Congress to sit back, take credit, shift blame.
Now, the idea that Congress should vote on rules that come from agencies is an old idea. James Landis, the New Deal’s guru of administrative law and then Dean of Harvard Law School wrote a book in 1938 called, "The Administrative State," where he made two proposals. One was the legislative veto. That was adopted but shot down in the Chadha case.
The second was to require Congress itself to vote on the major regulations. And he wrote, this would be a way that "have the administrative as the technical agent in the initiation of rules of conduct, yet at the same time have the legislative share in the responsibility for their adoption." Now, Judge Stephen Breyer, while a judge, showed how Congress could in fact implement the second idea, which was basically to have a fast track program where Congress could not avoid voting on these rules despite filibusters and all that. He worked it all out. It makes perfect sense.
And that was -- the Landis-Breyer idea was turned into a bill that was introduced in 1995 as the Congressional Responsibility Act. When it began to get traction, began to get bipartisan support, the leadership turned it into what's called the Congressional Review Act, which lets Congress opt whether to vote on these rules, and guess what? They hardly ever opt to do so because they don't want the responsibility.
After that became clear, some Republicans in the House introduced the REINS Act. It would require Congress to vote on the major regulations. Yet, the sponsors of REINS have framed it as an anti-regulation bill rather than a pro-responsibility bill. And that's exemplified by the bill's title, the regulations from the Executive in need of scrutiny. It's the agencies that are bad, okay?
So that minimizes the chance the Democrats will support it. None of the Democratic senators in the Senate support it. So the upshot is the sponsors of REINS can say they want to be responsible without ever having to take responsibility. As Representative Tom Cole, a Republican from Oklahoma, recently stated at a House Rules Committee meeting, "I have a lot of colleagues on both sides of the aisle that like to rail against the administrative state, but they certainly wouldn't want to have to vote on all these rules and regulations because they are high risk votes." Congress ain't responsible.
So the public's best chance of getting lawmakers who take responsibility for the laws is for the Supreme Court to follow on from the promise in the Gorsuch dissent in Gundy to begin to enforce the delegation doctrine. Then it would become Congress's interest to enact something like the REINS Act but not framed as an anti-regulation bill but rather as a pro-responsibility bill.
Tom, I've talked enough. Back to you.
Thomas G. Hungar: Thank you and thank you to all the panelists for those interesting and challenging introductory remarks. Before we get into the back and forth, I think Dean has an important announcement.
Dean Reuter: Yes, thanks Tom. And thanks to all the panelists again. I mentioned at the outset about the CLE code you need to record in order to get CLE credit from your bar association. For this panel, the code is 1-9-Federalist-1-7-0-8. I'll repeat that if you want to write it down. The code for this panel is 1-9-Federalist-1-7-0-8. Thanks, back to you, Tom Hungar.
Thomas G. Hungar: Thanks, Dean.
So a lot to talk about here. Why don't we start with getting further comments from the -- or rebuttal remarks from the panelists on, I guess, the two principal areas of disagreement with respect to the nondelegation doctrine that have been mentioned, namely is there a problem that a nondelegation doctrine more robust than current law is needed or should be adopted to address?
And then secondly, is there any basis in the Constitution for such a doctrine? And maybe, Professor Beermann, since you were taking the position that there's no problem and some of the other panelists seem to have a different view, you could start with your rebuttal on that point. And then we can move on to the constitutional question.
Prof. Jack Beermann: Well, I don't dispute that people would like Congress to legislate more. I certainly would, but I think that David's analysis makes a lot of great points. But it suffers from a flaw that a great deal of constitutional law in our system suffers from which is that if it's a good idea, let's make it a constitutional requirement. And I think if you can track a great deal of current constitutional law to that impulse that in many doctrines the court adopts what it finds the best state common law and proclaims it as the required constitutional law.
So and just as another thing, the idea that the nondelegation doctrine would solve the problem that David identified with the Clean Air Act leaves me wondering does anyone really think that the Senate would then pass a stricter Clean Air Act if it turned out that the current one was unconstitutional? I think that's almost too out there to even conceive.
So if you're worried about the problems with current law, maybe what you ought to do is invigorate the agencies and tell the courts to defer more rather than tell the Congress that it can't delegate to the agencies these important subjects.
And again, and Chris's point, I just want to say I think a lot of what Chris says makes complete sense and I would favor sunset clauses in a lot of statutes. I don't think it's constitutionally required which is the depth -- the nondelegation doctrine is about whether courts ought to impose a norm on Congress to frustrate what it views as the best way to handle these regulatory issues.
Thomas G. Hungar: I think I see Professor Rappaport chomping at the bit to respond.
Prof. Michael B. Rappaport: Well, you know, there's one basic, I think, disagreement here that Jack and I have. So Jack says Congress is in complete control, we don't need to worry about it. And I think in a certain sense, that's right. Congress does get to decide what to put in its legislation, and if it wants to delegate, it can delegate under our adjusting system. That's exactly right.
The problem is that both the normative arguments and I think actually the constitutional arguments are not about Congress being in complete control. It's not about preserving Congress's prerogatives, if you will. Instead, what it's about is preserving the liberties of the people and promoting good government. We want to check Congress.
The problem is that Congress doesn't want to legislate, does not want to take responsibility for what it needs. Saying Congress can do whatever it wants is the problem. We need to require Congress to legislate, and that's what the Constitution does when it gives only Congress the legislative power.
Now, so I'm -- I have more to say about whether or not it's in the Constitution, the nondelegation doctrine. We can talk about that, but if we're just talking about the normative argument here, that I think is the normative argument.
Thomas G. Hungar: Professor Schoenbrod.
Prof. David S. Schoenbrod: I have something I'd like to say if I could. Can I weigh in here?
Thomas G. Hungar: Please.
Prof. David S. Schoenbrod: Okay. So I want to respond to Jack. The fundamental question -- what we're trying to decide is is there a problem? And like Mike, I agree that Congress is in charge. The problem is that it's not accountable. And the longest discussion I've seen in the Law Review literature about why Congress is accountable is an article by Posner and Vermeule where they just say it's accountable.
Well, I just published a piece in the Harvard Journal of Law and Public Policy called "Consent of the Governed." And I lay out the political science literature on this. There's lots of political science literature, both theoretical and empirical. And the political scientists that I've seen, both Democrats and Republicans, left and right, they all say that Congress is able to shift blame big time. So there is a problem. And it's a problem to what the Declaration of Independence promised which was a government based upon the consent of the governed.
Now as to whether there's a doctrine, I think that's easy. We can go back to the constitution debate, the Federalist Papers, the early Supreme Court cases. They all say it's the job of Congress to make the rules of private conduct, the rules that govern society. That's just absolutely clear. And I set that out in the same "Consent of the Governed" article in the most recent issue of the Harvard Journal of Law and Public Policy.
The problem is this, is that as our society became more complex, there got to be more rules than Congress could conceivably vote on. So there has -- but that's not -- the fact that you can't fully enforce the meaning of the Constitution is not unique to the delegation area. It happens all over the place. But what the Court does is it tries to develop a test that deals with the problem of the infeasibility of what the Constitution promised. Cut it back and the problem is that -- and what Chief Justice Marshall did in 1825 in Wayman v. Southard was just fine. He said Congress ought to vote on the important stuff, but it could leave the details to somebody else.
But the way that got developed in the 20th century was, the court took the position that no matter how important it is, Congress could leave it to the agency if it says something about the goals. So it turns out that if Congress says here's this big problem, regulate it in the public interest, that's good enough. Well, that ain't accountability. That ain't consent of the governed. If -- I don't want to swear, but it's garbage. And that's what we got.
So and I think that the challenge for the court, the challenge for The Federalist Society, the challenge for us to figure out some way that we could identify the important stuff that Congress has to function on. And that is going to produce the kind of results that Jack says can't be because if Congress has to vote on the rules regulating, let's say, particulate matter that does kill people, they're not going to want to be responsible for allowing the pollution to continue, but then they don't want to be responsible for unreasonably expensive regulation. So they're going to try to figure out how to deliver more bang for the buck.
Now, we have Congress's incentive is to deliver more glory to themselves and less blame.
Thomas G. Hungar: Let's talk a bit about Professor Walker's timing thesis. And one question I have for Chris, and obviously others should chime in with their own, is it sounds great, but how do we get Congress to do it? Congress already knows how to impose sunset provisions when they so choose, and generally, they don't. And for all the reasons that people have been talking about, there are all sorts of incentives for them not to do so, absent some sort of a legislative role that says you can't propose a new regulatory regime without a sunset provision which you recommend against. How does it actually happen? They can't pass their appropriations bills and authorizations bills now, let alone all the new ones that would be required.
Prof. Christopher J. Walker: Yeah, yeah. So in the paper, we go through a number of different things. Now, the nice thing about being an academic, we can plant seeds now and hopefully, they'll grow later. I imagine you'd have to have a reawakening in Congress that's probably more of a popular movement. And if we get there, then we've set the roadmap in how to keep it going, right?
And there are a number of different ways to do that. Right now, actually, under the Senate and House rules, probably easier in the Senate than the House, if someone objects, the rules don't allow appropriations without authorization. And so that's one way you can even start moving right now in the Senate.
Now, I'm not sure that a Republican with the Senate majority leader would be willing to take the political cost, but maybe we could get someone like Senator Lee or Senator Rand to get going on that. But I really do think it takes more of a popular movement to try to make Congress great again.
I do want to clarify; Jonathan and I aren't arguing that this is a constitutional requirement. We're really tackling more if you care about this from a normative perspective, the breadth of delegation—completely agree with Jack on this, we seldom agree on anything—is the breadth really isn't the issue. It's more of the timing, more of the regular engagement.
On this constitutional issue itself, there are two really fascinating papers circulating right now that I just wanted to flag for those that are listening. Julian Mortenson and Nick Bagley at the University of Michigan have a really deep historical dive in called, "Delegation of the Founding." It's coming out in the Colombia Law Review. And their basic conclusion is there is no originalist foundation for the nondelegation doctrine.
Ilan Wurman, who's at the University of Arizona Law School, has a response coming out called, "Nondelegation at the Founding," that's coming out in the Yale Law Journal that comes to pretty much the opposite conclusion with some caveats. And I think we're going to get a lot more originalists focused on this because of these two really important papers to figure out, at least as an original matter, what role did the Founders see of Congress playing an exclusive role in delegating legislative power.
Prof. Michael B. Rappaport: One thing on the -- so to speak about the constitutional question and to speak about the evidence, I think Wurman in his paper talks about the Mortenson claim that oh, there's no nondelegation doctrine because after all, Congress gives to the Executive a statute as long as the Executive is enforcing that statute, there's not been a delegation.
He says we can't find a single person operating under the United States Constitution who ever took that position. There's lots of different positions that are out there. Some people are saying oh, this statute would or would not violate the nondelegation doctrine, but we don't find a single person ever saying oh, it's never a problem. It's completely up to Congress as long as Congress gives to the Executive a statutory authorization, it's fine.
So there's really no at least post-constitutional historical justification for that position.
Thomas G. Hungar: Well, we could, I think, fruitfully discuss this for quite a bit longer, but let's, at this point, turn to audience questions and see what else we might talk about. Dean?
Dean Reuter: Thank you, Tom. The first thing, I guess the system clears the raised hands now, so now, if you have a question, if you came into us by Zoom, on the bottom control bar, you can push "Raise Your Hand." If you dialed in by phone, push the star button and then the pound button on your telephone. You need to do this again even if you did it in the first part of the call. The board has been cleared.
Looks like we got at least a couple questions to get started. So with that, let's turn to our first caller. Looks like Bill is up.
Bill: Yeah, hi. I'd like to ask a question in the context of tax delegation. It seems to me that the founding in the structure gives to Congress the authority to establish taxes in -- and yet, there's even some law review articles out there now suggesting well, Congress perhaps ought to be able to delegate the authority to set tax rates to maybe the Federal Reserve or Treasury to respond more fastly [sic] to the needs of the economy.
I think that -- I guess my underlying sense is that this responsibility and accountability function of legislators to the constituents on taxes was an essential part of the constitutional bargain and should remain that and then maybe that would be a lens through which to look at the problem in a more general context.
So I guess my question is gee, do the panelists think taxes are something that we ought to be able to delegate and just let tax rates be set by the Federal Reserve or some other agency? Or is there something there where the nondelegation doctrine should play a role? Thank you.
Thomas G. Hungar: I'll open that up to the panel, but I'll note that there's actually pending litigation in the Federal Circuit right now challenging President Trump's exercise of delegated authority to basically change tariff rates to whatever he deems appropriate in the national interest. That was upheld by the Court of International Trade under the current nondelegation doctrine. Although, there's some trepidation. Any responses?
Prof. Jack Beermann: I would just say that I was going to bring up the tariff issue which is that historically, presidents have had a huge amount of control over tariff rates and when to impose them and even in the time when that was the primary source of federal government revenue. But whether an agency action under the current system has a huge effect on how much people pay in taxes, whether they would allow an agency to establish the exact rate, I think it would be a shock to the system. But I think under current law, it would be absolutely constitutional as long as there were guidelines that the agency was following and limits to what it could do.
Prof. Michael B. Rappaport: One thing I would say --
Prof. David S. Schoenbrod: Let me just add --
Prof. Michael B. Rappaport: Why don't you go ahead?
Prof. David S. Schoenbrod: I would just add that Justice William O. Douglas wrote an opinion around mid-sixties, something like that, interpreting a statute to deny an agency the power to set a tax on the basis that that would raise constitutional nondelegation issues. Can't remember the name of the case, sorry.
Prof. Michael B. Rappaport: Yeah, I remember that too. I don't remember the name either. But one thing I would say is, and this may be one area where I have a bit more idiosyncratic views about nondelegation, is I actually think that there are a variety of areas where the original Constitution does not apply the nondelegation doctrine to these areas. I think taxes is not one of them, so I think in general taxes are subject to the nondelegation doctrine.
But it may very well be that foreign trade is at, strangely enough—doesn't intuitively seem like it should be—but maybe that foreign trade is outside of the scope of the nondelegation doctrine. That's something that requires more work, but there's some evidence for that effect, which would be interesting because then you could delegate much more substantially in that area than you could with domestic trade, for example.
Prof. David S. Schoenbrod: I would just add one further thing that the way that the early discussion, the Framers and early cases, talked about Congress's job, they said it was the job of Congress to legislate the rules of private conduct. And certainly, a tax law, a law imposing -- saying you have to pay a tax, that's a rule of private conduct. So add that.
Dean Reuter: Again, if you'd like to ask a question, raise your hand using the bottom of your control bar on Zoom. If you dialed in, push star-nine, not star-pound. Push star-nine. We got two questions pending. I'd really like to get to both, if possible, so let's go to our next caller.
Annie St Hilaire: Hi. This is Annie St Hilaire calling in from Boston, Massachusetts. And I study at the University of Massachusetts, and I'll be graduating pretty soon. I also represent Turning Point USA, and my question essentially is how can my generation personally really spread this information in a way where other students can really connect with The Federalist Society and learn?
Thomas G. Hungar: That may be a question for Dean but anyone who has thoughts?
Annie St Hilaire: Yeah.
Dean Reuter: Well, I'd be happy to address that. I'd be happy to hear from Chris Walker since he's probably more in touch with that generation than I am. But yes, feel free to spread the word about The Federalist Society using all forms of social media. That's what we're doing to try and reach out to younger generations. We have a very strong presence on law school campuses, over 200 chapters at every accredited and even unaccredited law schools across the country. But we're always looking for new ways to reach out through social media, through our videos, and other content that's customized with the younger generations in mind.
Prof. Christopher J. Walker: I'll just quickly add that there's -- The Federalist Society's put together a great, free online administrative law course. I think it's through their Project 86 initiative. So if you go on their website, they've got about 30 or 32 different videos going through all the various different doctrines on administrative law. I think it's a really great introduction for people, even pre-law school.
Prof. Jack Beermann: I would suggest reading up on the American Constitution Society website.
Prof. Christopher J. Walker: Do they have good stuff there?
Prof. Michael B. Rappaport: They have a lot about The Federalist Society, I'm sure.
Dean Reuter: Should we go to the next question, Tom?
Thomas G. Hungar: Yes, please.
Dean Reuter: Okay, here we go. We've got about seven minutes left, so -- that's Gary Lawson again. Welcome, professor.
Prof. Gary Lawson: Thank you. Actually, we have about 5 minutes because I have to be at a 1:00 other talk. Today's program is broken down into three parts. You've got the legislative power, you've got the judicial power, and you've got the executive power. And the question is whether today's panel shows how that division can't possibly stand up. Because, after all, if something is within the judicial power, it's not delegation for Congress to pass a statute implementing it. If something's within the executive power, it's not delegation for Congress to pass a statute helping implement it.
So in order to get a handle on what Congress can and can't do, don’t you have to have a handle on what the judicial power and what the executive power really are? The upshot of which is doesn't that mean Jack Beermann becomes the champion of the imperial presidency? Because he has to be saying as a constitutional matter that the executive power includes pretty much anything and everything and we might as well bring a [inaudible - no audio 56:17] a third back in and stop there.
Thomas G. Hungar: That sounds like a question for Professor Beermann, and I guess another way of putting it is how do we square -- if that's the vision, how do we square that with what the Framers clearly understood to be the problem with assembling legislative, judicial, and executive powers in the same hands, which they and Montesquieu and many others said was the recipe for tyranny?
Prof. Jack Beermann: Well, I do recall getting a letter once which I believe was signed by Steve Calabrasi and Gary Lawson which quoted from the Federalist Papers. And I responded to it with a quote from the Federalist Papers about how the political theory here requires that all these powers be blended and combined in -- sufficiently to basically make a workable government. I'm paraphrasing badly.
But Gary, I understand your question, but I think that you're wrong because I'm not saying that the President has all this independent authority. The President gets most of the authority from Congress. And all I'm saying is the judges shouldn't butt in and should let Congress decide how much authority to delegate to the President because I don’t see anything in the Constitution that tells the President that they have any authority except to execute the laws as passed by Congress.
And I don't think the judge -- we don't want unaccountable federal judges to be deciding what the structure and scope of our substantive powers are in that regard. We ought to let Congress decide. So I'm in favor of Congress and democracy rather than the imperial presidency. Unless Congress wants to create an imperial presidency and as long as they don't give him a title or nobility, I guess it's fine. And they've done that at certain times, but I don't think they're really going to go very far down that road in a way that would bother anyone.
Thomas G. Hungar: I guess that raises a question that I've been wondering about as I listen to the conversation which is if we do go down the road of a reinvigorated judicially-enforced nondelegation doctrine, how do we guard against -- and that maybe serves to constrain the power of the Executive to some extent, but how do we guard against ever expanding the power of the judiciary and moving into even more of a judicial supremacy world than the one we're already in?
Prof. Michael B. Rappaport: I guess the premise of the question is that the judiciary would use its power to interpret whether or not something was a delegation or not on political grounds. Is that --
Thomas G. Hungar: Yeah, yeah. Sure. And just the fact or at least the concern that many have expressed that it's virtually impossible to come up with any principled approach to a robust nondelegation doctrine that you could actually expect the courts to enforce in an even-handed manner.
Prof. Michael B. Rappaport: Well, I think the --
Prof. David S. Schoenbrod: Well, I --
Prof. Michael B. Rappaport: Why don't you go ahead, David.
Prof. David S. Schoenbrod: Yeah. I think that the current test, which is the intelligible principle test, I believe is not susceptibly being enforced in any manner because it's really a question of degree, and there's no way to compare how much guidance one statute gives the agency versus another and no yardstick to measure how much leeway the agency has. So I think if the court tried to enforce the intelligible principle test, I think it would be a recipe for a lot of power being handed off to the judiciary.
But I think there's another approach which is along the lines of saying that the most important regulations, the most significant regulations have to be enacted by Congress and the rest, Congress can leave to the agency. And that's what Landis said. What we need, though, is a test to decide which regulations are more significant.
We have an executive order that was promulgated by -- or signed by President Clinton and has kept -- been enforced under Obama and also enforced under Bush, too, and Trump. That may well be -- in fact, I'm writing something now to make the argument that that could be adapted to be a test that is fairly crisp and clear and would allow requiring Congress to vote on the more important stuff without giving the Court open-ended power.
Prof. Michael B. Rappaport: I would say that the, in my own view, the original meaning of the nondelegation doctrine is actually too strict for something that would work in our world. But that doesn’t mean as a matter of precedent, the Court couldn't compose a weaker standard. I think, for example, Lopez is not the original meaning in the Commerce Clause area, but that doesn't stop the Court from cutting back on the Commerce Clause.
Now, I think it's true that whatever standard would be used that would be workable would have some significant uncertainty about it. But people who defend those kind of standards make a very good point, I think, which is it'd be hardly the only area where the Supreme Court exercises a fair bit of discretion in determining what the rules are.
It's very odd to say oh, well, here we have all these other cases and wow, it's incredible how the due process and the Free Speech Clause, all these other clauses, have no discretion for the Supreme Court. It's too bad that the nondelegation doctrine couldn't work that way. This is the way the Supreme Court operates generally, and I think the argument is that they need to do the best they can. That's the premise of the system. And so there's something to be said for doing the same thing in the nondelegation area.
Thomas G. Hungar: Dean, are we out of time? Or do we have time for any further comment?
Dean Reuter: Let's take -- if the panelists can hang in, let's go another minute. But we've got to be brisk here.
Thomas G. Hungar: All right.
Prof. David S. Schoenbrod: Professor Lawrence Lessig has written a book published recently called, "Fidelity and Constraint," that backs up exactly what Michael was saying which is that there's a difference between the meaning of the Constitution and the tests the Court often adopts. For example, the meaning as to malapportionment is one person, one vote. But the Court's test is not exact quality as long as the districts don't deviate by more than 10 percent, they're presumptively valid. Many, many examples of where the Court has dealt with reality by having a test that is not as broad as the meaning.
Prof. Christopher J. Walker: I just want to underscore real quickly, this isn't a hypothetical question Tom has raised. The majority of the Supreme Court has expressed interest in reinvigorating the nondelegation doctrine. Go read Justice Gorsuch's dissent in Gundy and try to figure out what that means, what type of test it would be. I think he's trying. We've all been trying to come up with a test that administrable.
I do think Justice Kavanaugh is kind of tying in on David and Michael's points. Justice Kavanaugh's statement that focuses more on major questions, while that might not have the same constitutional foundation that Justice Gorsuch is seeking, it is an administrable principle. Now, we will see, if that actually becomes law, it'll be really interesting to see not just what the Supreme Court does but what all the circuit courts do across the nation when they're evaluating these.
The Supreme Court's going to have an awful lot of work to do with all the circuit court decisions striking down statutes. And Congress is going to have even more work to do if we do see this revival, the nondelegation doctrine, that at least five justices of the Supreme Court think we should be considering. So we're in some pretty fascinating times on the topic of this panel.
Prof. Jack Beermann: Well, I want to just say that I think David's proposal about how it ought to work makes some sense as a policy matter. But it would be a pretty shocking example of judicial activism if the Supreme Court decided that President Clinton's executive order was somehow constitutionally required. And that's to me the most disturbing pathology in our constitutional laws that whatever five members of the Supreme Court think is a good idea suddenly appears in the meaning of the Constitution.
Thomas G. Hungar: Well, thank you all. Fascinating issues. Dean, back to you.
Dean Reuter: Thank you, Tom. And on behalf of The Federalist Society and personally, I want to thank our moderator, Tom Hungar, and our experts, our panelists, thank you all for being here. I thought this was a fascinating discussion. To our audience, thanks for dialing in or for linking in as the case may be.
A reminder that Executive Branch Review Week continues. This is but the start. We've got a full week of teleforum conference calls. Next up is a call tomorrow at noon on the Unitary Executive and Independent Agencies. But until that next call, we are adjourned. Thank you very much everyone.
Prof. David S. Schoenbrod: Thank you.