Congress Should Reclaim Authority From Agencies

This article appeared in the Arizona Republic on July 7, 2008.
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The Supreme Court recently turned down environmental groups that sought to stop Homeland Security Secretary Michael Chertoff from ignoring laws that might impede construction of a border wall.

That cleared the way for Chertoff to act as a super‐​legislature with unprecedented powers granted to him by Congress. He made the most of his newfound clout, suspending more than 30 statutes, including the National Environmental Policy Act, Endangered Species Act, Clean Air Act and Solid Waste Disposal Act.

It is time to review Civics 101: The legislature enacts the laws; the executive branch enforces them. Lawmaking is for Congress and cannot be delegated to the Department of Homeland Security.

Surprisingly, federal agencies now dwarf Congress when it comes to making rules that control what Americans can do. The Code of Federal Regulations, which covers hundreds of independent and executive agencies, comprises more than 200 bound volumes.

By comparison, the U.S. Code, containing all laws passed by Congress, is a mere 35 volumes. In effect, Congress has delegated much of its legislative authority to an unelected alphabet soup of bureaus that tell us how to live.

The U.S. Supreme Court blessed this trend during the New Deal: Legislators may delegate their authority so long as Congress “shall lay down … an intelligible principle to which the person or body authorized … is directed to conform.” What constitutes an intelligible principle? Basically anything: Not a single post‐​New Deal statutory program has been invalidated as an unconstitutional delegation of legislative power to the executive branch.

Consider one recent case, Whitman vs. American Trucking Associations Inc., which asked whether Congress, in the Clean Air Act, could empower the Environmental Protection Agency to set air‐​quality standards. Congress directed the EPA to “protect the public health” with “an adequate margin for safety.” The court of appeals ruled that Congress “failed to state intelligibly how much is too much.” The Supreme Court, unfortunately, disagreed.

What makes American Trucking so outrageous is that the so‐​called intelligible principle (“protect the public health” with “an adequate margin of safety”) was logically impossible to apply. The pollutants in question were dangerous at any concentration above zero so there was no margin of safety. What’s more, the pollutants occur naturally; the EPA could not have eliminated them if it wanted to.

The point to take away from both these cases is that delegation has become a recipe for irresponsibility. Congress gets to claim credit for the supposed benefits of, say, a border fence, yet dodge culpability for the associated environmental costs. Now that the Supreme Court has declined to intervene, the ball is back in Congress’ court. A responsible Congress should reclaim its authority and reinvigorate the non‐​delegation doctrine.

Political philosopher John Locke said, “The legislative (branch) cannot transfer the power of making laws to any other hands.” The legislative power, Locke said, is “to make laws, and not to make legislators.”