Justice Gorsuch’s Three Important Questions
As related in the preceding post, Justice Gorsuch welcomes what he considers a return in Trump v. Slaughter to the traditional constitutional order of governing authority clearly allocated among three separate branches. Yet, he has misgivings of what lies ahead. Confirming the President’s authority to remove agency officials at will as part of his Article II powers and duties is fine. That authority is not exercised in a political and constitutional vacuum, however. Rather, it arises in the context of a massive structure of unelected political actors who operate through broad grants of power from Congress and whose decisions affect the lives of Americans in sweeping scope. He poses and then seeks to answer three important questions: “Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them? How will Congress respond now—if realistically it can? And what, if anything, will this Court do about it?”
Academic Theory Meets Political Reality
Plato’s fictional ideal government of reason in Republic came to naught because of the inescapable influence of passion, including eros, on human action. Likewise, the ideal Progressive system of the organic state, managed by a highly-trained technocratic elite of experts working selflessly and dispassionately for the benefit of the whole with nary a selfish thought or action, crashed on the reality of human nature. Justice Gorsuch observes puckishly, “Influential as these ideas were, they met with some hard realities as they progressed from the academy into the halls of government.” An aphorism attributed to the 19th-century Prussian military genius Helmut von Moltke has been passed on as, “No battle plan survives first contact with the enemy.” An equally perceptive line might be, “No idea perfected in a faculty lounge or social science publication survives first contact with reality.” As a veteran of reading such articles and hearing such ideas, I can attest at least to the latter dictum.
In support, Gorsuch points to the case which started the Court down the constitutional path now blocked in Slaughter, that is, Humphrey’s Executor. He observes that Humphrey, a former Congressman, was not picked for the position of FTC commissioner because of his technical expertise but for his loyalty to the Republican Party. The nearest he came to FTC expertise was his close connection to lumber companies which previously had been investigated by the FTC. Moreover, the President and Senate still controlled the appointment process. Congress still determined national policy direction through a process of balancing competing political interests, not the least of which is the members’ desire not to endanger their chances for re-election. The FTC did not operate in a vacuum outside political influences.
If Humphrey was appointed for reasons other than his expertise, Roosevelt removed him for reasons other than his lack of expertise. The President made no secret that the removal was entirely due to his political calculation that the conservative Humphrey was not sufficiently sympathetic to the New Deal and the government’s efforts to cartelize the structure and practices of important industries. After all, such a commissioner might not be trusted to uphold FDR’s “codes of fair competition,” the application of which could and did result, as one example, in a fine and a three-month jail term for a dry cleaner who charged a customer 5 cents below what the government declared was a “fair” price.
Humphrey’s Executor and the Political Metastasis of the Administrative State
When the Supreme Court rejected the President’s claimed power to remove Humphrey at will and upheld Congress’s power to restrict the President’s removal power to matters of cause for commissioners of “independent” agencies, Congress quickly created a dozen such independent agencies within two years. According to sources cited by Gorsuch, these agencies left “‘vast and extremely important fields of Government activity almost removed from the President’s direct administrative control.’”
Moreover, now secure through the constitutional holding in Humphrey’s Executor that powers given to such unelected agencies would not land de facto in the President’s hands through an ability to fire recalcitrant officials, Congress greatly expanded the scope of delegations of policymaking to such agencies, with broadly defined objectives and vague standards. Gorsuch gives some examples, such as the FTC’s power to “define, outlaw, and prosecute any ‘acts or practices which are unfair or deceptive,” and the SEC’s power to “‘make such rules and regulations as may be necessary or appropriate to…ensure the maintenance of fair and honest markets.’”
This was a development critical for the expansion of the uncontrolled, unelected bureaucratic state. As Gorsuch warns, it was estimated that, by 1990, “‘over 300,000 federal regulations,’ many of them adopted by independent agencies, ‘may be enforced criminally.’” Today, matters are worse. “More recent and exact totals are hard to come by—some say there may be simply too many regulatory crimes to count.” And these are only the regulations which bring criminal enforcement. I used to say to students years ago that if one imagined the books containing federal statutes placed against one wall of the classroom, the rest of the room would be filled with volumes of administrative regulations. It’s as good an estimate as any.
Gorsuch is uncertain as to the answer to his first question, if Congress would have delegated such broad policy-making powers to agencies, had Humphrey’s Executor followed Myers v. United States and left the power to fire such officials at will in the President’s hands. On the one hand, he writes, Congress also expanded the powers of executive agencies whose officers the President was still able to fire at will. On the other, scholarly consensus points in the direction that the creation of “independent” agencies shows at least a strong correlation with the profusion of broad grants of administrative power by Congress to the bureaucracy.
We Cannot Know What Congress Might Have Done in the Absence of the Humphrey’s Executor, but the Danger from Concentrating in the President the Vast Power that Congress Has Given to the Administrative State Still Exists
In any event, these “[o]pen-ended delegations of legislative power have not gone away; now they will just be exercised by agency officials who answer to the President.” Therein lies the rub. Gorsuch frets that the “power to write new regulatory crimes still exists, but now the pen ultimately rests in the President’s hand,” not to mention the power to enforce those rules and the ability to judge the disputes in-house. “It may be true that after today there is no more ‘fourth branch’ of government. But the fourth branch’s powers still exit; they have just been reassigned to the President.” He quotes Madison in The Federalist No. 47, that such a combination of powers “risks inviting exactly what those who framed our Constitution feared: the ‘accumulation of all powers…in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective’…(emphasis added).”
It is no remarkable revelation to note that, despite its formal structure of separated powers, the Constitution creates a potentially robust executive-style government. This has been recognized since the debates on the Constitution in 1787. Woodrow Wilson, as one might expect, welcomed it: “The President is at liberty, both in law and in conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution,…but only because the President has the nation behind him and Congress has not.”
Possibly, but formal limits remain. The power to remove officials at will does not guarantee a favorable policy outcome for the President. Removing one official does not put another official in place, for example. As a rule, the President still needs Senatorial confirmation to place his own people in office. The rocky path of several nominees by President Trump to various executive positions, including recently Todd Blanche’s nomination to be Attorney General, show that even disregarding the Senate’s filibuster tradition, members of the President’s own party cannot always be counted on for support if other considerations, even ones totally unrelated to the office, take precedence.
Given the structure of the typical agency, the President also cannot create a majority on a commission ex nihilo. Moreover, as Gorsuch points out, this accumulation of power already exists in the nominally “executive” agencies, such as the IRS and the agencies and departments responsible for immigration applications and enforcement in the Departments of Homeland Security and State. These entities have significant authority and often act under broad grants. They make regulations, which they enforce, and disputes over which are addressed initially in-house.
Still, Justice Gorsuch’s concern over this concentration of power within a single agency or branch of the government has been a long-voiced criticism of the administrative state, especially over the past century. There is certainly cause for that concern. He then turns to his key point, what might be done to ameliorate that danger.
Looking to Congress to Reclaim Their Constitutional Authority and Restore a Proper Balance
He suggests that Congress would be the obvious place to start. Congress could use the power over appropriations to rein in or channel the actions of agencies if Congress opposes their (and, potentially, the President’s) actions. However, he believes that “‘[a]ny President keen on his own authority…will have a strong incentive to veto’ any effort to reclaim those powers.” Perhaps, but it is overly rigid thinking to assume that a determined Congress will not have the political leverage to restrict the President’s discretion in one area of policy-making as part of a larger appropriations bill that includes funds for other purposes that the President deems important. It has been done before.
Gorsuch does not mention another possibility. Congress can use its legislative power to tighten up the scope of agency delegation through more careful drafting of better-defined policy objectives and clearer standards. While this, too, might draw a presidential veto, which would have to be overridden by a 2/3 majority in each house, it also is a matter of political savvy and give-and-take. The invigoration of separation of powers need not be, and likely would not be, an all-or-nothing process brought about overnight. The expansion of agency authority did not happen overnight, either. As the saying is, “Rome was not built in a day.” Neither was it destroyed in a day.
The Real Obstacle to Controlling the Administrative State Is not the Constitution but the Lack of Political Will and the Public’s Apathy
Gorsuch fears that any effort by Congress to reclaim its authority will fail because of the President’s veto of such an attempt. The bigger problem is one of political lethargy. In the absence of some pressing emergency, Congress seems content to avoid the difficult task of meaningful, but potentially tedious, legislative action. Careful legislation on complex matters, with the need potentially to revisit the policy several times as new experiences require amendment, is a demanding task. Better just to let the bureaucrats handle this. It lessens the legislative workload and avoids accountability over failed policies, which suits legislators constantly angling for reelection just fine. As the Progressives taught, an activist and gargantuan federal government intruding on so many aspects of life is beyond the capacity of members of Congress to control or even to comprehend.
Ultimately, recapturing the balance of power set forth in the Constitution is a matter of political will, not textual impediments. That political will is unlikely to be summoned for one simple reason—the public likes the administrative state or, as it might be called, the bureaucratic welfare state. It will probably take a cataclysmic societal event and a prolonged period of governmental ineffectiveness to change people’s frame of mind of dependency and entitlement and to reset the constitutional rails than an opinion by the Supreme Court issued one fine day in June, if it can ever be done.
In the next post, I will address the approach which Gorsuch sees as most promising, one with which he is most comfortable, that is, judicial reshaping of the administrative state’s regulatory and adjudicatory powers.
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