Congress Can’t Delegate Power It Doesn’t Already Have

The Framers of the Constitution, fearful of establishing a tyrannical government, were cautious about placing too much power in the hands of one person or assembly. They thus split federal power between the legislative, executive, and judicial branches. This separation of powers also prevents the government from ridding itself of responsibility by granting too much power to other branches or entities.

When Congress gives significant power to another body—whether an executive agency or an interstate compact—it is delegating authority. But congressional authority is limited to the powers listed in Article I of the Constitution, and it certainly can’t grant power that it doesn’t have.

In 1986, Congress authorized the Metropolitan Washington Airports Authority (MWAA)—an interstate compact—to take over for the federal government in managing Reagan and Dulles Airports and the Dulles Toll Road, all of which are federal assets on federal land. A group of Virginia taxpayers and toll-road users, upset that the MWAA was raising tolls to pay for an extension of the Washington Metro, filed a class action against the MWAA, arguing in part that it was exercising improperly delegated authority. The U.S. Court of Appeals for the Fourth Circuit held that Congress did not delegate authority to the MWAA and so there was no separation of powers problem. Bizarrely, it stated that the power to operate airports on federal land is not “inherently federal.”

Yet, as the Supreme Court established in Department of Transportation v. Association of American Railroads (2015), when the government creates an entity, controls it, and the entity serves a federal interest, it is exercising federal power. Since the MWAA’s authority fits this description, Congress certainly granted it federal power. Congress goes against the separation of powers doctrine, however, when it gives power to other bodies just to avoid the time, energy, and hard decisions involved in legislating.

Further, the Fourth Circuit was wrong to draw a distinction between federal and “inherently federal” authority. As the Supreme Court has long understood, federal power is not split between “inherent” or general federal power, but rather between the branches of government. The only types of federal authority are those enshrined in the Constitution: legislative, executive, and judicial. Thus, all federal power is “inherently federal.”

Since Congress possesses only “inherently” federal power, the lower court created uncertainty about whether Congress has the authority to control airports. If it can control airports, the Fourth Circuit was mistaken and Congress delegated inherently federal authority to the MWAA. If Congress didn’t have the authority in the first place, then where does the MWAA get its regulatory power in the first place? Either way, Congress can’t delegate power it doesn’t have.

Cato has now filed an amicus brief supporting the plaintiffs’ request that asking the Supreme Court to resolve uncertainty regarding the definition of federal power. We argue that grants of federal power come from Congress—and that federal power is the only kind of power Congress has. The Constitution demands that each branch shoulder the responsibility entrusted to it, no matter how politically expedient it would be to let another entity bear the burden.

The Supreme Court will likely decide before it breaks for the summer whether to take up Kerpen v. Metropolitan Washington Airports Authority.

As Seattle Reels From An HIV Outbreak, Safe Consumption Sites Make More and More Sense

The US Centers for Disease Control and Prevention’s latest Morbidity and Mortality Weekly Report (MMWR) alarmingly reports a 286 percent increase in cases of HIV among heterosexual persons injecting drugs in King County, Washington from 2017 and mid-November 2018. The report recalls a similar outbreak for similar reasons in rural Indiana that took place between 2011 and 2014, and ultimately led the state to enact legislation permitting needle-exchange programs to operate there. 

As I explain in my policy analysis on harm reduction strategies, needle exchange programs have a more than 40 year track record reducing the spread of HIV, hepatitis, and other blood-borne diseases, and are endorsed by the CDC and the Surgeon General, but are prohibited in many states by local anti-paraphernalia laws. But such laws are not the problem in the state of Washington. Needle exchange programs have operated legally there for years.

Safe Consumption Sites have been shown to be even more effective in reducing the spread of HIV and hepatitis, as well as preventing overdoses. The nearby city of Vancouver, BC has found they dramatically reduced cases of HIV as well as overdoses since 2003.

Recognizing this, the Seattle city council voted in 2017 to permit the establishment of two safe consumption sites, which are obstructed by federal law, in particular the so-called “Crack House Statute” passed in the 1980s, which makes it a felony to “knowingly open, lease, rent, use, or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance.” A non-profit group in Philadelphia is attempting to set up a “Safe House” there, and has already been met with the threat of prosecution from the Department of Justice. Former Pennsylvania Governor Edward G. Rendell, a principal of that non-profit, spoke about this at a recent conference on harm reduction held at the Cato Institute.

With safe consumption sites working in more than 120 major cities throughout the developed world, including several in neighboring Canada—and with outbreaks of HIV developing across the US—lawmakers who claim to be deeply concerned about the plague of disease and overdoses afflicting the country should put their money where their mouth is and repeal the outdated “Crack House Statute” so cities and towns can get to work saving lives. 


Supreme Court Will Decide Whether 1964 Law Bans LGBT Workplace Bias

For 40 years Congress has declined to pass the Employment Non-Discrimination Act , which in recent versions would prohibit private employment discrimination on the basis of sexual orientation and gender identity (I’ve discussed its merits before, noting that “as libertarians recognize, every expansion of laws against private discrimination shrinks the freedom of association of the governed.”) Now, as predicted, the Supreme Court has agreed to resolve a split in the circuit courts over the theory that Title VII of the 1964 Civil Rights Act banned these forms of discrimination all along, and that courts simply didn’t figure that out until recently.

The strongest case for this reading rests on an ambitious, yet not frivolous, plain meaning approach to Title VII’s text. The law bans any discrimination against an employee “because of… sex.” Now suppose that the employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so. It has (the argument goes) treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.

Ranged against this line of argument is precedent as well as, should one choose to give it weight, likely legislative intent. In the years after 1964 courts considered but rejected arguments that the law by its terms covered sexual orientation, presumably inadvertently (since almost no one thinks the lawmakers of that era intended such a result). Much later, when it endorsed the new interpretation, the federal Equal Employment Opportunity Commission called the old precedents “dated.” “Dated” might seem like a pejorative term for “well-established,” yet it is true that the Supreme Court in its decision in Price Waterhouse v. Hopkins (1989) did mix things up somewhat by accepting a theory that Title VII covered not just sex but gender “stereotyping.” That might open the door to further evolution in what had not shown itself to be an entirely fixed standard.

The proposed new and broader reading of Title VII has met with mixed success in the circuit courts, creating the split that the high court yesterday agreed to resolve (The three cases are Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes v. EEOC). When the Seventh Circuit by an 8-3 en banc vote accepted the broader reading in the case of Hively v. Ivy Tech, its multiple opinions included a memorable contrast between those by Judge Richard Posner, concurring with the majority view, and Judge Diane Sykes for the dissenters. Ken White at Popehat tells the tale:

With rather remarkable frankness, Posner rejects the majority’s attempt to premise the decision on Supreme Court precedent and forthrightly accepts a mantle of what might be called “judicial activism”:

I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.

That’s an extraordinarily blunt statement of the judicial philosophy that conservatives attack as “legislating from the bench.”

It falls to Judge Sykes in dissent to articulate the case for judicial conservatism and a limited role for courts:

This brings me back to where I started. The court’s new liability rule is entirely judge-made; it does not derive from the text of Title VII in any meaningful sense. The court has arrogated to itself the power to create a new protected category under Title VII. Common-law liability rules may judicially evolve in this way, but statutory law is fundamentally different. Our constitutional structure requires us to respect the difference.

It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation, a wholly different kind of discrimination. Because Title VII does not by its terms prohibit sexual orientation discrimination, Hively’s case was properly dismissed. I respectfully dissent.

These philosophical divides on statutory interpretation — which of course play out every term in lower-profile cases — are likely to be on the Court’s mind next fall.

The Fight over Particulate Matter

The EPA and conventional air pollution regulations are back in the news. NPR reported that the seven-member Clean Air Scientific Advisory Committee (CASAC), which provides the EPA with technical advice for National Ambient Air Quality Standards, is “considering guidelines that upend basic air pollution science.” But NPR’s oversimplified depiction of a settled scientific debate ignores real misgivings about the science that has justified the regulations and provides an opportunity to ask questions about the proper role of science in public policy.

The pollutant in question is particulate matter (PM), tiny particles or droplets emitted from power plants, factories, and cars. The EPA contends that PM with diameters smaller than 2.5 micrometers, about 3 percent of the size of a human hair, is the most harmful because the particles can be inhaled deep into the lungs. Along with five other criteria pollutants, the Clean Air Act requires that the EPA periodically prepare an analysis that “accurately reflects the latest scientific knowledge” on the health effects of PM exposure. It must then set air quality standards “requisite to protect the public health…allowing an adequate margin of safety.”

Whether one favors leaning towards caution and setting stringent pollutant standards or is skeptical of the efficacy of air quality rules and worries about the costs of the regulations, PM is important. On the one hand, the supposed harms of PM are high. One (contested) study claimed that 2005 levels of PM caused about 130,000 premature deaths per year, which would put PM as the sixth leading cause of death in the United States after strokes. On the other hand, the regulations are expensive. Between 2003 and 2013, EPA regulations accounted for 63–82 percent of the estimated monetized benefits and 46–56 percent of the costs of all federal regulations. The benefits of reducing PM specifically are 90 percent of the monetized benefits of EPA air regulations, meaning PM rules play an outsized role in the justification for many of the costliest federal regulations.

No matter which side of the debate one is on, it would seem important that the EPA have a rational standard-setting process that properly weighs both the possible reduction in the harms of PM and the potential costs. Unfortunately, that is not the case.

The scientific evidence of the harms of PM is much more uncertain than many observers claim and the conflict over what we do and do not know about the effects of PM has existed for decades. The evidence of negative health effects of PM is primarily two studies published in the 1990s, the Harvard Six Cities Study (SCS) and the American Cancer Society Study (ACS). As I have previously noted,

The SCS has been the subject of intense scientific scrutiny and much criticism because of results that are biologically puzzling. The increased mortality was found in men but not women, in those with less than high school education but not more, and those who were moderately active but not sedentary or very active. Among those who migrated away from the six cities, the PM effect disappeared. Cities that lost population in the 1980s were rust belt cities that had higher PM levels and those who migrated away were younger and better educated. Thus, had the migrants stayed in place it is possible that the observed PM effect would have been attenuated.

Furthermore, a survey of 12 experts (including 3 authors of the ACS and SCS) asked whether concentration-response functions between PM and mortality were causal. Four of the 12 experts attached nontrivial probabilities to the relationship between PM concentration and mortality not being causal (65 percent to 10 percent). Three experts said there is a 5 percent probability of noncausality. Five said a 0-2 percent probability of noncausality. Thus 7 out of the 12 experts would not reject the hypothesis that there is no causality between PM levels and mortality.

Protectionism for Taxis at Logan Airport

In March,

the Massachusetts Port Authority revealed details of a plan to increase pickup fees for ride-hail trips from $3.25 to $5, and riders would have to pay the $5 to be dropped off at the airport. Massport would charge riders $2.50 if they agreed to share their Uber or Lyft ride.

Under the same plan, Massport would also require travelers to walk from the terminals to the airport’s central parking garage for pickups and drop-offs.


The changes would not apply to the taxi industry, which would still have direct access to the terminals.

The official justification is that Uber and Lyft create congestion at the terminals.  That argument is unpersuasive: if congestion is a problem, any policy response should apply to taxis too.

These policies are indeed misguided and worth changing.

Punishing Housing Providers for Racial Imbalances They Didn’t Cause Will Only Lead to More Racial Bias

The federal Fair Housing Act (“FHA”) makes it unlawful to discriminate based on race (among other categories) in the sale, rental, and financing of housing. Four years ago, in a case called Texas Department of Housing v. Inclusive Communities Project, the Supreme Court determined that the FHA allows certain claims based on “disparate impact”—meaning that tenants don’t need to prove discriminatory intent behind housing policies, only an adverse effect on members of their protected class, even if it was the unintended result of an otherwise neutral policy.

Enter Waples Mobile Home Park in Fairfax County, Virginia. Waples rents primarily to Hispanic tenants, but, to avoid violating federal immigration policy, it requires all community residents to provide their social security numbers or otherwise show proof of legal immigration status. Several current and former tenants filed an FHA complaint against Waples, alleging that this policy has a racially disparate impact. Why? Because most undocumented people in Fairfax County are Hispanic.

Although the trial court threw out the lawsuit, the U.S. Court of Appeals for the Fourth Circuit resurrected it. According to the court, a mere showing of statistical disparity is enough to establish a valid claim. But, as the Supreme Court in Inclusive Communities emphasized, “[w]ithout adequate safeguards … disparate-impact liability might cause race to be used and considered in a pervasive way and ‘would almost inexorably lead’ governmental or private entities to use ‘numerical quotas,’ and serious constitutional questions then could arise.” One of those important safeguards, called the “robust causality” requirement, makes sure that housing providers aren’t punished for racial imbalances they didn’t cause. 

Waples is not, and cannot, be responsible the geographic distribution of undocumented individuals within the United States. It simply isn’t the park’s fault that most undocumented people in Fairfax County happen to be Hispanic. Its policy of requiring tenants to provide proof of immigration status thus could not have “caused” a disparate impact. Allowing FHA claims based on this sort of coincidence would destroy the Inclusive Communities safeguards and shift the burden to housing providers to prove the absence of discrimination. Doing so will only undermine the core purpose of the FHA—to decrease racial bias in housing decisions—by encouraging more race-based decision-making among housing providers for fear of being sued. 

Raise the Minimum Purchase Age for Tobacco?

Some lawmakers think this is a good idea:

Senate Majority Leader Mitch McConnell, R-Ky., announced he will introduce national legislation to raise the minimum age for people buying tobacco products from 18 to 21.

But evidence from the U.S. and elsewhere suggests the MPA-21 for alcohol has had minimal impact on drinking or driving fatalities among 18-20 year olds.  And rampant evasion teaches young adults that rules are made to be broken, thereby breeding disrespect for the law.

A MPA-21 for tobacco will suffer the same fate. Worse, it would be one more step down the slippery slope toward tobacco prohibition.  What could possibly go wrong?