Balkinization  

Tuesday, September 18, 2007

A Post-Constitution Day Note About Presidential Contempt for Democracy

Brian Tamanaha

Section I of Article I of the Constitution is a model of brevity and clarity: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives."

A website dedicated to educating kids about the constitution emphasizes that in our system, consistent with the language of Article I, the legislature alone makes the law: "our head of state, the President, has no power to make laws." We have come a long way from the days of Roman law, which held that "What has pleased the prince has the force of law."

This often-told story makes us feel good about our democracy, but it's a big fat fiction that leaves out of the account our vast body of administrative regulations. Don't be fooled by the label "regulation" into thinking it is not "law." Regulations specify binding obligations and often come with civil and criminal penalties. And the notion that regulations are still "democratic" (indirectly) because they are authorized by Congress and subject to congressional override is a stretch that is convincing only to theorists who prefer abstraction over reality.

Here's our democracy in action (as reported by John Broder in the New York Times):

...now President Bush has his cabinet and staff busily writing far-reaching rules to keep his priorities on the environment, public lands, homeland security, health and safety in place long after the clock strikes midnight and his presidential limousine turns into a pumpkin.

With Congress in Democratic hands and his political capital all but spent by the Iraq war, Mr. Bush has scant hope of pushing significant domestic legislation through Congress. But he still controls the executive branch and can still accomplish much through regulation and executive edict.


That sounds a lot like "what pleases the prince has the force of law." As Broder notes, many incoming presidents have complained about last minute acts of regulatory law making by their predecessors, but then in turn commit the same offense when leaving office.

"Every administration does it," said Susan E. Dudley, head of the Office of Information and Regulatory Affairs, the White House agency that oversees rule making throughout the executive branch. "It doesn't matter the party the president comes from or who controls Congress. While I'd like to say this administration won't, I have to accept that we'll likely see an increase in activity toward the end of our time here."


Dudley's expressed reluctance about the impending burst of final hour law making is odd and implausible. Nothing is forcing the Bush Administration to engage in the same actions it criticized the Clinton Administration for (Broder suggests that Dudley, who joined the White House "from the pro-business Mecatus Center at George Mason University under a recess appointment," was one of the critics).

Ms. Dudley, an expert on government who has studied the midnight regulations phenomenon, said that she hoped to avoid what she called the "slapdash" approach of the Clinton administration after the 2000 election.

"It may be that an increase in regulatory activity is inevitable at the end of an administration," she said, "but we're determined to do it right, based on the best science and the best technology, with ample opportunity for the public to get involved."


Sure, sure--unlike their predecessor--they'll "do it right" when they set in place a bunch of laws on their way out; it might help her credibility if she explained why this practice is seemingly inevitable (and please don't suggest that all those regulations took seven years to prepare).

Apparently the temptation to behave like a Prince is too great to resist.

It is one thing to acknowledge that owing to the complexity of modern life we need the regulatory system and must therefore accept the democratic deficit it entails. But an effort at the close of an administration (Clinton, Bush, or any other) to issue regulations that further a particular political agenda oozes of contempt for democracy.

Comments:

Professor Tamanaha:

A website dedicated to educating kids about the constitution emphasizes that in our system, consistent with the language of Article I, the legislature alone makes the law: "our head of state, the President, has no power to make laws." We have come a long way from the days of Roman law, which held that "What has pleased the prince has the force of law."

This often-told story makes us feel good about our democracy, but it's a big fat fiction that leaves out of the account our vast body of administrative regulations. Don't be fooled by the label "regulation" into thinking it is not "law." Regulations specify binding obligations and often come with civil and criminal penalties. And the notion that these regulations are still "democratic" (indirectly) because their are authorized by Congress and subject to congressional override is a stretch that is convincing only to theorists who prefer abstraction over reality.

Here's our democracy in action (as reported by John Broder in the New York Times):

...now President Bush has his cabinet and staff busily writing far-reaching rules to keep his priorities on the environment, public lands, homeland security, health and safety in place long after the clock strikes midnight and his presidential limousine turns into a pumpkin...

Apparently the temptation to behave like a Prince is too great to resist.

It is one thing to acknowledge that owing to the complexity of modern life we need the regulatory system and must therefore accept the democratic deficit it entails. But efforts to issue regulations at the close of an administration ooze of contempt for democracy.


This is interesting.

Are you joining those of use who believe that Congress' delegation of legislative and judicial power to the unelected Executive bureaucracy is both unwise and unconstitutional?

Or are you arguing that such delegation is only unwise and "anti democratic" when ordered by democratically elected Presidents for "political" reasons?

I would suggest that we could solve all of the considerable anti-democractic policy and unconstitutional delegation of power problems without sacrificing the advisory function of the bureaucracy by simply having the bureaucracy recommend regulations to Congress for enactment and have violations of those statutes be decided in Article III courts as required by the Constitution.
 

Yeah, right, Bart. As if.

Seems to me the Bushies are gearing up to "do regulations right" because, unlike the Clinton administration, they're pretty damn certain they won't be handing off to a friendly administration. Instead, they're planting whole fields of administrative land-mines.

I know that "friendly hand-off" was a factor in the Clinton admin's down-to-the-wire completion of the Roadless Area Conservation Rule -- when the Bushies stole Florida, the Forest Service had to redouble their efforts to finalize the RACR. Only to have Cheney slap a freeze on it first thing, of course.

Another angle is highlighted by that particular story: the Roadless Rule was, and remains, the most wildly popular piece of environmental policy-making yet presented to the American public.

But because of the Dead Hand natural resource politics of Western senators especially, there was never a chance for a roadless area-protection bill in Congress.

Just for example, the fact that a clear majority of Idaho citizens supported roadless area protection counted for less than nothing with Larry Craig. (Who should be counting fish forever after in the River Lethe, if there were justice in this universe.)
 

make a decision. Adopt an amendment that entrenches the unitary executive or one that does not. Engaging i decade-long arguments about whether your constitution does not does not establish a unitary executive is an intellectual wasteland.

Equally, you need to re-establish the legislative veto. As as far I am aware, every democratic national legislature on the planet, except the US congress, can disallow subordinate legislation. It's not immediately obvious how denying the US congress this power has advanced the cause of representative government, although it has led to an amazing amount of law-making outside the congress.
 

I tend to agree with Bart. Just like on the commerce clause, conservatives have a point with respect to the regulatory state, which isn't consistent with the separation of powers (Bart doesn't mention this, but administrative adjudication also impinges on Article III judicial powers) and gained its foothold during the New Deal.

And this is an issue that historically troubled liberals as well as conservatives-- witness Cardozo's concurrence in the Schechter Poultry case, complaining of delegation "running riot".

Obviously, there is some play in the joints between executive branch formulating enforcement policy (which can take the form of rulemaking) and purely legislative acts. But the Congress simply delegating the power to make a broad spectrum of rules with respect to particular industries and activities really isn't consistent with any plausible reading of the Article II legislative power.
 

Yeah, it's not so much that the oft-told story is a fiction, it's actually a pretty good description of the system the Constitution set up.

The fiction is that we're still following that Constitution.
 

It bears remembering that the only reason the regulatory agencies have the authority to do these anti-democratic things is because Congress gave them the power in the first place.

Is there a reason Congress couldn't reserve a legislative veto if it wanted to? Don't I remember reading a case about this in Con Law?
 

Steve:

You read INS v. Chadha, holding the legislative veto unconstitutional.
 

The issues raised by the rise of the administrative state (all over the world) are deep and profound, as suggested by Prof. Tamanaha's original posting. With due respect, it is infeasible to expect Congress to have the time to hold hearings and vote on every administrative agency proposal, but it is also disturbing to have so much law made by administrative agencies. We all, of course, ride our own hobbyhorses, so let me suggest that one of the (altogether understandable) deficiencies of our Constitution is that it has literally nothing useful to say about governance in the modern administrative state, and the Supreme Court's blunderbuss and formalistic opinion in Chadha wasn't much help. (I personally thought Justice White's dissent was his best single opinion in his 30-some years on the Court.) This is precisely the kind of issue that could usefully discussed in a constitutional convention given a mandate to take a fresh look at the adequacy of our 18th-century Constitution in a 21st-century, administrative-state-dominated, world.
 

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