To be clear, presidents aren’t writing actual statutes. Instead, they’re ordering their administrations to interpret ambiguous laws that have long been on the books.
And therein lies the rub: Congress has given away, or “delegated,” much of its policymaking power over the last century to the executive branch by passing broadly‐worded laws that empower the federal bureaucracy to impose law‐like rules. For the most part, Congress delegates to pass the buck. When voters want something done, lawmakers could legislate policy specifics, but they’ll get blamed if they err. By delegating, Congress can escape accountability.
At first, Congress tempered these delegations by competing with the president for control over regulatory policy. Over the last few decades, however, our increasingly polarized Legislature has become a shell of its former self. In the contemporary Congress, political party trumps institutional pride. As a result, half of Congress loses interest in runaway executive power whenever “their guy” occupies the Oval Office.
By now, Congress has ceded enough policymaking initiative to render itself expendable. When Biden wants a law made, he can go it alone. All he has to do is order an agency to push the envelope of its existing authority.
Of course, presidential lawmaking flies in the face of our constitutional framework. The Founding Fathers designed a government with three branches — executive, legislative and judicial — and gave each the means to check the other. By dispersing power into competing institutions, the Constitution’s structure protects individual liberty. But now Congress has taken itself out of the constitutional competition, and the result is an alarming accumulation of power in the executive branch.
In Federalist 62, James Madison warned that an “excess of lawmaking” is a “disease” to which “our government is most liable.” For this reason, the Constitution makes lawmaking difficult: Before becoming law, a bill must pass the both the House and Senate and then receive the president’s signature.
By contrast, it’s much simpler for the president to achieve a regulation. All he needs to do is pick up the phone to get the ball rolling. Overbearing government is easier in our era of presidential administration.
In addition to these constitutional concerns, there are also pragmatic problems with our current era of presidential administration. Congressional delegations are written so loosely that successive Republican and Democrat (or vice‐versa) presidents can achieve opposite policies by interpreting the same statutory text.
The upshot is that federal policymaking pivots 180 degrees whenever there’s a party changeover in the White House. This is no way to run a country.
Ultimately, this mess is Congress’s fault. Until lawmakers rediscover their institutional ambition, the Constitution’s separation of powers will remain out of whack, and presidential power will run amok.
The good news is that the Supreme Court might compel Congress to get its act together.
In a line of cases stretching back more than two decades, the Court has been hinting that Congress must be clear when it delegates significant policy decisions to the executive branch. This principle is known as the “major questions doctrine,” and, if it takes hold, presidents would have far less leeway to advance their agendas through creative interpretation of old laws.
The problem is that the Supreme Court hasn’t yet directly applied this emerging doctrine, so there’s very little for lower courts to work with. In October, however, the court took on a blockbuster case, West Virginia v. Environmental Protection Agency, in which the major questions doctrine is front and center.
The case’s backstory offers a quintessential example of presidential administration in practice. After Congress considered, but failed to pass, a “cap and trade” climate policy, then‐President Obama ordered the EPA to do what Congress wouldn’t. As commanded, the agency issued the Clean Power Plan, which involved a nationwide cap‐and‐trade scheme — the same major policy that Congress had just rejected. To justify the rule, the EPA interpreted an obscure provision of the Clean Air Act, one that was written almost a half century earlier.
But the clock ran out on Obama’s presidency before the Clean Power Plan could take effect, and his successor quickly called for the rule’s repeal. In scrapping the Clean Power Plan, the Trump administration reasoned that the rule far overstepped the EPA’s delegation from Congress.
A legal battle ensued, involving many states, businesses and nonprofits. Last January, the D.C. Circuit reversed the Trump‐era reversal of the Clean Power Plan. The court held that there is “ample discretion” in the 50‐year‐old law’s “gaps” to reshape the electricity sector.
The losing parties, led by West Virginia, then sought Supreme Court review. Their lead argument was that the D.C. Circuit gave short shrift to the major questions doctrine. By accepting the case, the Supreme Court signals an interest in rethinking how much power agencies can wring from broadly worded and long existent laws. The Court will hear arguments early next year, and we can expect a decision late next spring.
As an immediate matter, the outcome of the case will determine the scope of the Biden administration’s authority to make climate law. Before the Supreme Court took the case, White House National Climate Adviser Gina McCarthy warned that if Congress doesn’t enact grid‐wide production quotas for low‐carbon power producers, then the EPA will act on its own — based on the legal provision at issue in West Virginia v. EPA.
More broadly, the case could lead to a welcome adjustment in how our federal government works, limiting the power of not just Biden, but all future presidents. If the Supreme Court does finally put meat on the bones of its major questions doctrine, we could see at least a partial restoration of constitutional balance between the legislative and executive branches of government, a needed change regardless of which political party is in power.
