When the Court Shrinks the Administrative State, Congress Loses Power

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It’s been a good month for West Virginia in its fight to keep the planet ablaze. The Supreme Court, in West Virginia v. Environmental Protection Agency, prevented the EPA from doing more to push the country out of coal. The court held that it was up to Congress to decide major policy questions about burning fossil fuels and to clarify what vaguely written environmental laws like the Clean Air Act meant. Weeks later, West Virginia Senior Senator Joe Manchin, a Democrat, ended the Biden administration’s plan to wean Americans off coal, making it clear that under his leadership, with the slimmest of Democratic majorities , Congress would do nothing.

The conservative majority on the court seeks to reduce the administrative state in favor of congressional decision-making, but it’s a Congress unable to decide much. Or at least, the Senate is incapable — and the House is ineffective without the Senate. Inaction might have survived in the past, when Congress was simply too dysfunctional to adequately deal with health care, labor law, or many other issues. In the case of Obamacare, it was amazing that he proposed legislation; exhausted by this effort, Congress under President Barack Obama did little else. Under President Biden, the “soft infrastructure” bill collapsed – Congress couldn’t manage its provisions for things like child and elder care, clean water, high universal debit and community colleges. This is the kind of congressional inaction that the United States might be able to withstand – everyday life will continue, even as the country becomes more unequal and perhaps eventually crumbles. Climate change is another matter. Inaction here has more serious consequences. And by empowering a dysfunctional Congress to do nothing about climate change, the Court is arguably unwittingly endangering Congress as an institution. If there is a paralyzed Congress, unable to delegate to an administrative state, it may one day lead to an emergency where Congress is sidelined – Biden already has to resort to an executive order to try to stop the burning of fossil fuels .

Supreme Court justices must follow the news. They must know as well as anyone that a deadlocked Congress has never been able to dig into the details of environmental regulations. In the 1970s, the Department of Energy had a policy of pushing factories from oil to gas, and no one expected Congress to do anything more than vaguely bless doing something to save oil . This is true for any parliamentary body in a republic — it is unable to fend for itself to educate itself and take emergency action on technical or scientific matters. Even the 1914 Congress knew it; that’s why he created the Federal Trade Commission, to define and prosecute specific abuses that this current court might say only Congress can define.

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The problem is not the House, however crude it may be. Consider all the major legislation the House passed under Speaker Nancy Pelosi (D-Calif.), only to see them die in the Senate. But in the real world, even the House doesn’t have the time or ability to delve deeply into crafting administrative rules that the court seems to think, in its fantasy world, that a legislative body in the midst of a climate emergency can do. It takes a decade for Congress to do this kind of work — and by then, far too many people will be desperate or dead.

The left, of course, does not give the court the benefit of the doubt; progressives are certain that his antipathy to the administrative state is not so much about empowering Congress, but rather about keeping corporate America and the wealthy from being regulated.

Be that as it may, even in good faith, the Court’s hostility to the administrative state jeopardizes the existence of Congress.

The delegation of legislative power is the very thing that saves him — and has saved him, ever since the administrative state as we know it emerged in the 1930s. In his 2013 book, “Fear Itself: The New Deal and the Origins of Our Time,” historian Ira Katznelson recounts how leaders on the left and right openly debated whether the Depression, an emergency, required authoritarian rule: President, Franklin Roosevelt, and his administration have to do without Congress? In this urgency, there was no time to amend the Constitution; it would simply be set aside. “If this country ever needed a Mussolini, it needs one now,” said a Republican Senator from Pennsylvania, David Reed, in 1932, as Katznelson put it. “Leave it to Congress,” Reed said, “we’ll be playing here all summer trying to satisfy all the lobbyists, and we’re not going anywhere.” Even the economic weekly Barron’s, writes Katznelson, has called for a “kind of soft dictatorship.”

The happy result, of course, is that Roosevelt did not renounce Congress, nor the rule of law, nor a Republican form of government. At first, however, the Roosevelt administration nearly did. The National Industrial Recovery Act, also known as the Blue Eagle Act, was the centerpiece of what is known as the First New Deal, which ran from 1933 to 1935. The act gave the president the power uncontrolled to fix prices, wages and hours, industry by industry, in any way it thought fit. The president became, by law, the chief executive officer of every company, association, or corporation in every major industry in the country, even though these codes were first developed by private bodies. In the Blue Eagle Act, a frightened Congress had rid itself of itself and put Roosevelt in charge of the economy, just as the regimes of the new authoritarian countries had done.

In 1935, a unanimous Supreme Court struck down the Blue Eagle Act in Schechter Poultry v. United States. This was partly because it gave the president unlimited power over intrastate and interstate commerce, but mostly because it created, potentially, a jaw-dropping presidential dictatorship. This was not just a case of delegation like West Virginia vs. EPA. The Blue Eagle Act was an attempt to dispense with a legislature; Italy and Germany did. Even liberals like Louis Brandeis and Benjamin Cardozo joined the court’s conservative majority. After the Schechter Poultry decision, Brandeis, as recounted by Harry Hopkins, Roosevelt’s Federal Relief Administrator and later Commerce Secretary, said, “It’s the end of this centralization thing, and I want you back in back and tell the president that we are not going to let this government centralize everything.

In his concurring opinion, however, Cardozo suggested that large-scale delegation of power was acceptable if limited to specific objects: for example, the Federal Trade Commission had the power to define unfair trade practices, he said. he declares.

What happened next in the second New Deal was a shift towards this tighter delegation of power. The National Industrial Relations Board, for example, has been given the task of dealing with specific problems. What Katznelson calls “a host of ABC agencies and programs – AAA, CWA, PWA, REA, TVA, WPA, NRA, SEC, NLRB, FLSA, FHA, FSA and more” – followed. This is the origin of the administrative state by which the country bypassed a particularly dysfunctional legislative power.

Judges eager to eviscerate this version of the Second New Deal of the administrative state should know this: it was not invented to displace Congress but to save it, especially the Senate.

The line between the proper scope of the administrative state and that of Congress has been vague, messy, and in many cases simply ignored, but for nearly a century it worked. Edmund Burke would wince at the court’s radical ideological attempt to overthrow it. It is often said that Congress enacts poorly drafted laws, but in a dysfunctional legislature, part of a dysfunctional Constitution, there is no alternative to unclear and poorly drafted laws if laws are to be passed. . Legislative drafting offices are full of excellent lawyers who are perfectly capable of writing clear laws, but clarity, for political reasons, is often not the intention of Congress. The Clean Air Act is loosely written legislation, but insisting that Congress do a better job ignores why. Strong, clean, and precise decisions are beyond the institutional capacity of Congress, so often crippled by filibuster and gerrymandering, and generally unable to act in an emergency. For the court to resent a poorly drafted law is to ignore the intent of Congress to have drafted it poorly.

As the past few days have shown, the administrative state is necessary to save us from Manchin – but it is also a way to save Manchin himself. If the planet continues to burn, as this virus or a new one continues to ravage it, we will need a much looser Constitution with an administrative state that may need to be bigger, not smaller, than the one we the Court is trying to shrink.

Alarmed by climate change, even a congressional champion like Biden is starting to sour on the spot. In a speech on Wednesday, he called global warming a “clear and present danger” and pledged to act. So far he has refrained from officially declaring a climate emergency, but thanks to an active court and an inactive Congress, we may have no alternative but ‘a mild kind of dictatorship’ .

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