Today, I am riddled with confusion. It has come to my attention that the Media is a little upset with the concept that Congress may actually have to do their jobs and the Supreme Court won’t be able make/enforce laws from Administrative Agencies anymore…I won’t hold my breath.
In an article from Slate the main claim proposed is that the US Supreme Court is going to bring back a Doctrine that will “paralyze Biden’s Administration.” I got very excited — namely because the last Doctrine I remember in detail was the Monroe Doctrine and I figured I was about to get a “cool” history lesson…alas, no. After you read past the headline, trying to harken us back to more “oppressive” times, what we find out is that this ‘Gundy Doctrine’ referenced is actually *drum roll* — the US Constitution — and that’s bad news bears according to the Left and Justice Kagan who stated if the “conservatives bring back this ‘nondelegation principle’ that ‘most of Government is unconstitutional'” in a majority opinion from Gundy v. United States. (I actually preferred the dissent from Gorsuch — we see eye to eye about this slippery judicial slope.)
Now for some facts and opinions:
- The Nondelegation Principle stems (it’s more an implicit understanding) from the concept that was laid out in Article I Section I of the US Constitution
- All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives (U.S. Const. art. I, § 1.)
- Legislative Branch is the government entity that MAKES laws for the United States.
- Executive Branch is the government entity that ENFORCES those laws.
- Judicial Branch is the government entity that INTERPRETS those laws and administers the justice as a result of the interpretation.
- “Nondelegation Principle” here means that Congress cannot pass off their SOLE PURPOSE, to write laws for the country, to other entities/branches. They can have these “administrative” agencies make guidelines or offer suggestions for regulation BUT Congress, and CONGRESS ALONE is the only entity that can make a law from that agencies data/opinion.
- Example: The FDA/ATF/Grandma can tell you cigarettes are bad (based on research and studies) and you shouldn’t smoke them. BUT only Congress can make cigarettes illegal.
A very good and cut/dry example of this (in which there was unanimous judicial decision) is Whitman v. American Trucking Ass’ns Inc.. In this case, the late Justice Scalia wrote the majority opinion which boiled down to the fact that Congress was within the “nondelegation principle” when they originally had asked the EPA to set a standard for Ambient Air (NAAQS) via the Clean Air Act (CAA). However, in ’97, Carol Browner, the Admin for the EPA, revised the ozone and particulate matter allowed in parts per million (from .12 ppm to .08ppm) NAAQS — which was the big ‘no-no’ in that suddenly the EPA is making/changing the rules and trying to set legal standards of good/bad which is NOT the governmental role of the EPA. They are the “data miners and presenters”, not the rule creators and enforcers (don’t worry though the EPA let everyone know there were countless meetings, public hearings, a national hotline number to dial and discuss. Out of “over 50,000 written and verbal comments” on the changes they [the EPA] didn’t see too much objection for changing national standards without going through Congress first.)
I willingly admit that the EPA making a suggestion to change the standards is well within their power to do, and it was evident they had a decent amount of data to back their claims. However, to again quote the late Justice Scalia on this as well “the EPA could not consider implementation costs (the financial affects of this change is outside the scope of which the EPA could make a judgment call which they weren’t asked to do) in setting primary and secondary NAAQS, since that would require a law which must go through the Legislative process.”
Since the time of FDR’s New Deal it’s been increasingly more obvious that for the most part, the Courts (both left and right leaning) have let Congress leave legislation open ended which has given what *I* would call unchecked authority to administrative agencies and the executive agencies that oversee them.
Remember – Executive branch is the only branch that can actually enforce laws and therefore all administrative agencies fall under the Executive. The way Congress has passed things off on these agencies is under the guise of the ‘intelligble principle’ – which means, in layman’s terms, Congress is telling the agencies WHAT to do (they wrote the law) it’s up to the agencies to figure out HOW to do it. And the Judicial branch shouldn’t be involved unless absolutely necessary.
Example: Congress gave us the Internal Revenue Service (*gag*) to “collect/assess” taxes under the Internal Revenue Code (IRC). IRS can’t set the tax amount to be assessed — that’s on Congress. BUT the IRS is in charge of taking that law and figuring out how they’re going to do it.
The government giving tasks/dictations/rules to other agencies isn’t necessarily an issue (opinion later on this) — I don’t expect Congressional committees to sit around and write out a law for every potential situation that would arise out of the proposal, BUT since the New Deal it seems that power has shifted from Congress actually legislating and instead dictating and decreeing via administrative orgs and executive orders.
Though, Slate was nice enough to make a case of what would be the appropriate course to take if you want to “combat climate change”: “Biden and Congress can pass legislation (yes this is the appropriate step 1) phasing the United States toward 100 percent clean energy by 2030—but someone will have to actually sweat the details (yes, make your data monkeys do some analysis and strip us of the V8s as well — but make Congress ban them) about which engines can be included in which cars.”
Now the fun part…
Per Slate: “Such a decision would not only threaten existing regulations. It endangers every piece of future progressive legislation, too. Big, transformative legislative packages, like a Green New Deal or “Medicare for All,” would require a million and one technical decisions that Congress is poorly positioned to make.”
GOOD. If it takes Congress forever and a day to come up with laws (first off laws shouldn’t be packages that’s some BS as a whole) to cover the above then SO BE IT. We aren’t meant to have a government that co-signs every insane idea that lobbying or political parties want. So, sorry you’re not going to push legislation through as executive orders or judicial rulings. DO YOUR JOB CONGRESS and if the law is too easy to pick apart and you NEED the court to do your bidding (looking at you Obamacare) then go rewrite the law and try again.
Slate: “The conservative justices have long been hostile to regulation and executive action. And now they may finally have the votes to bring virtually any regulation to a halt.”
I’m so sorry this is sensationalist AF and plays right into the slippery slope of “if the government doesn’t stop or fix it then it’s forever broken and can’t be saved!” NO. NO. No no no. You (gov.) were created to protect the trade and safety of the United States against enemies foreign and domestic, along with other idiosyncrasies, not to make sure we can tear down entire buildings to make them “green” because some on the Left thinks we can just print money without repercussions and increase taxes to offset our OUTLANDISH debt, but don’t worry the Fed will
Ultimately, Slate is fear mongering that Congress may actually have to write and pass laws and debate on the House and Senate floor about what is being proposed to help ALL AMERICAN’S, rather than passing off their jobs to agencies. OH THE HORROR OF HAVING TO WORK!
The late Justice Scalia had written many opinions on the “nondelegation principle” and I agree with two that have been heavily cited and criticized. In the unanimous consent of the Court (Whitman above) it was obvious Congress wanted the EPA to write the guidelines and rules for the CAAs NAAQS so in turn Congress could then write laws that would be required to meet these standards and the Executive could execute the laws behind them. CLEAR AND DEFINED Separation of Powers (what this all boils down to).
However, he [Scalia] also wrote the ONLY dissent in Mistretta v. United States classifying the US State Sentencing Commission as a “junior-congress” since Congress gave them an obscene amount of open ended power and direction except to ‘make rules and sentencing guidelines’ which from Scalia’s POV blurred the Separation of Powers (the US SSC is apart of the Judiciary but gives/gets direction from the Legislative Branch). Justice Gorsuch makes this point in his dissent from Gundry v. United States when he wrote “…a Constitution at war with it’s text and history the plurality (the Majority) reimagines the terms of the statute before us and insists there is nothing wrong with Congress handing off so much power to the Attorney General.”
And here, my compatriots, is where we realize that Congress doesn’t want to do anything but perpetually campaign, shake hands with corporate CEOs, live at the upper tiers of upper class, and have the gall to criticize the American People like they KNOW us. They (the life time politicians, the slimy lobbyists, the mega corporations) don’t even remember what it’s like to BE US!
They live by different rules and are playing a completely different game and as a result Congress just expects whatever newly graduated college kid, who got stuck running some excel numbers, makes that data look just “good enough” to be called government work.