Toward Constitutional Administration

Spring 2016

Last year was a busy one for bureaucratic, rulemaking agencies — and a bad one for America's traditional constitutional order. In January, the Securities and Exchange Commission initiated proceedings against an employee of Standard & Poor's Ratings Services for violating several regulations. Rather than bringing the case before a federal judge, the SEC initially brought it in front of an SEC-appointed administrative law judge — before whom it very rarely loses. In February, the Federal Communications Commission decided that internet service providers would be subject to a series of politically controversial rules known collectively as "net neutrality," after a three-to-two vote of its unelected commissioners. And in May, the Environmental Protection Agency unilaterally increased its own power by ruling that its regulations now apply to nearly any body of water in America that can influence waters downstream.

These are only three among many examples suggesting that we are no longer governed by what the founders envisioned: a tripartite, constitutional republic. We are ruled, rather, by bureaucrats. Congress, by enacting broad and often vague statutes, has delegated substantial parts of its legislative power to administrative agencies. But, because these agencies are part of the executive branch, they also execute the laws they make by initiating enforcement actions against individuals and entities that violate them. Worse still, the agencies themselves frequently adjudicate these enforcement actions in front of administrative judges, who are employed by the very same agencies. Not only are unelected bureaucrats making law, but, by exercising all powers of government within the same governmental body, they are also undermining the separation of powers — the very core of constitutional government.

To resolve this separation-of-powers problem, many constitutional conservatives have demanded that Congress cease delegating legislative power to agencies. And indeed, invoking the authority of the "non-delegation doctrine," they pretend that Congress can't delegate its lawmaking power. But in reality, Congress plainly does so all the time and is unlikely to stop. Strict enforcement of the non-delegation doctrine would thus demand a largely impossible transformation of the way our government now works; short of such a transformation, the principle offers few if any tools for reviving the separation of powers.

It is time for a different approach to the problem of constitutional government in an administrative era. Constitutional conservatives should accept the reality of modern administration and its genesis — the delegation of legislative power from Congress to agencies. But we should not accept that such delegation must be deadly to the separation of powers. In fact, a constitutionalism that begins from the fact of delegation could help recover the traditional separation of powers in the Constitution — or at least something that looks and functions remarkably like it.

If we accept the fact of delegation and thus that some administrative agencies do effectively exercise all three functions of government, each constitutional branch of government could exert control over the agency function corresponding to its own constitutional function. Congress could control the legislative functions of administration (rulemaking, for example); the president could control the executive functions (enforcement activities); and the courts could control the judicial functions (a subset of the adjudications that agencies conduct). This would shift the terms of the debate: We currently ask who exercises power in the first place — the constitutional branches of government or the agencies? — when we should be asking who directs and supervises the agencies as they use any given type of power.

The implications of this approach are numerous. To give only one prominent example, under this model of administration, which I call "constitutional administration," a properly conceived legislative veto is constitutional. Namely, a legislative veto of legislative acts — of administrative rulemakings, for example — is constitutional. The administrative state can operate unimpeded in its domain — its rules by default will still be binding law — but if Congress wanted to veto a specific rule, such as some of the recent, high-profile EPA or FCC rules, Congress would have the power to do so.

Coming to terms with delegation of legislative, executive, and judicial power would involve a number of simple, constitutionally significant, and politically practicable reforms in each area. There are no obvious political hurdles to enacting them — in fact, these reforms offer something to both the left and the right. And, although they would work a profound constitutional reform of the administrative state, none requires a tectonic shift in administrative practice. That is, perhaps, their greatest virtue.

WHY SEPARATION OF POWERS?

To ultimately accept this approach, one must first be persuaded that we ought to sacrifice one important element of the original constitutional order (non-delegation) for another (separation of powers). Non-delegation, after all, is a critical component of republicanism, since a republican system is one governed by the people's elected representatives, not by unelected bureaucrats. Is it worth sacrificing something of our republican form of government for the sake of the separation of powers?

To start, it shouldn't be forgotten that, as it now operates, the administrative state undermines both republicanism and the separation of powers. For the sake of constitutional appearances — the fairly empty assertion that Congress cannot delegate legislative power under the Constitution — we have in fact sacrificed both principles. But if we accept some diminishment in republicanism, we can revitalize our commitment to the substance behind the separation of powers.

James Madison declared that the combination of powers was inherently tyrannical:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

Many in the founding generation repeated this refrain.

The American form of separation of powers was the chief innovation of the Constitution, which Madison famously explained in Federalist No. 51:

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.

The brilliance of the constitutional design was that, although the powers would be separate, they would not be entirely separate; each branch would have some hand in the exercise of power by the other branch, thereby allowing each one's own ambitions and institutional interests to serve as checks on the ambitions and institutional interests of the others.

The framers believed the very existence of liberty depended on such a system. When 18th-century Americans talked about "constitutional" government, they spoke of the allocation of power. The British government had not been republican; it was still thought to be, at least in its uncorrupted form, constitutional. (Recall that the Declaration of Independence did not declare that King George III was unfit to rule a free people because he was a king; rather, he was unfit to rule such a people because he was an unjust king.) The very purpose of constitutionalism was to distribute power to prevent tyranny.

The particular balance struck by the framers — though it was surely not the only possible balance — was thus thought to be absolutely critical for the survival of free government. No government at all — whether republican, monarchical, mixed, or something else entirely — could ever be free without a proper distribution of power in which the ambition, interest, and pride of each party could serve as an effective check on the ambition, interest, and pride of all the others.

That is not to say republicanism is unimportant. It's only to say that having separated powers but a weakened republicanism is better than having neither. Furthermore, by accepting delegation we might even be able to strengthen republicanism from the baseline of modern administrative practice. Congress can still ensure that agencies make law according to its wishes by adhering to the "intelligible principle" standard. And, as we shall see, accepting the reality of delegation allows Congress to assert more control over agency rulemaking. By thus accepting delegation, we actually mitigate its harms to republicanism as well.

THE LEGISLATIVE VETO

The most important consequence of accepting delegation would be its implications for the legislative veto. The Supreme Court ruled the legislative veto unconstitutional in the 1983 case Immigration and Naturalization Service v. Chadha. The case resulted from the attorney general's exercising his discretion under U.S. immigration laws to suspend deportation proceedings against Jagdish Chadha and five other aliens; in response, Congress had overruled the suspensions, re-initiating the deportation process. The Supreme Court suspended Chadha's deportation once again — essentially on the grounds that, if Congress is to exercise its legislative power to change the application of the immigration laws, it can only do so through the ordinary lawmaking process, not by overruling a regulatory decision without enacting a new statute.

Under an approach more accepting of delegation, the legislative veto exercised in Chadha would still be invalid. Why? Because in that case, the attorney general applied the law to the facts of Chadha's case and decided that he qualified for withholding of removal, ceasing the deportation process. When Congress vetoed the suspension of deportation, it was thus deciding for itself how the law was to be executed; it was exercising a power it does not possess.

But what if Congress were to veto a legislative act? What if, that is, Congress were to veto an administrative rule, which we now understand to be an exercise of legislative power delegated to an agency by Congress, rather than a specific enforcement action? Recall that under modern administrative doctrine, any exercise of administrative power is considered executive; thus, Congress can only change the law prospectively. It has to pass a new law or repeal or amend an existing law so that the law will be different going forward. To do any of that requires both houses of Congress and the president.

But once we recognize that the administration in a particular case is not exercising executive power but rather a legislative power delegated to it by Congress, a veto of a rulemaking would be constitutional because Congress would not have to change an existing law. If the rule has not yet become law, then Congress could step in and terminate the process. It would not need the assent of the president.

Put a different way, if Congress can now delegate its legislative power, it can delegate it with conditions. It could choose, for example, to delegate only the power to propose laws; Congress would then have to enact every administrative rule before it became law (this proposal, in the case of major rules, is now embodied in the so-called REINS Act). But that probably wouldn't work. After all, Congress wants to delegate power to agencies so it can pass the buck on tough policy questions. Congress could do something else, however: It could delegate its power to enact law under the condition that Congress must have, say, seven months to consider each new rule. Only if Congress does not act within those seven months does the rule become law. But if Congress does take some action, such as issue a veto, then that rule cannot become law.

THE RULEMAKING ENABLING ACT

Using the Rules Enabling Act — which governs the rulemaking of the federal courts — and Article I, Section 7, of the Constitution as models, Congress could easily concoct a new law governing the rulemaking procedures of administrative agencies. We might call such a statute the "Rulemaking Enabling Act."

Such a law could say, for instance, that whenever an agency or independent commission wants to make a new rule, it must submit the rule directly to Congress by a certain deadline. Congress would then have three options for responding. First, Congress could take no action, leaving the rule idle. (Whether this happens because Congress cannot reach a consensus or because lawmakers in fact approve of the rule is immaterial here.) After seven months of inaction, the rule would take effect and become binding law, provided the president assents to it. Second, Congress could pass a bill containing the rule, or an amended version of the rule; the president would then need to approve the bill, and then the rule would become law. (This second case is no different than the ordinary legislative process described in the Constitution.) Third, Congress could pass a "resolution of disapproval," which would effectively veto the rule, meaning it would not be presented to the president and would not become law.

Under such an approach, much of the administrative state would operate as usual. For the majority of rules, Congress and the president would assent by taking no action. Or perhaps Congress would take no action, and the president would enthusiastically take ownership of the new rulemaking. Either way, that's the standard operating procedure for today's administrative state.

But when Congress did take some action indicating disapproval — by passing its own version or by vetoing — that would be enough to nullify the agency's rule. The president's signature, currently required to invoke the Congressional Review Act, would not be constitutionally necessary to terminate a rulemaking. Under the Rulemaking Enabling Act, the agency would not have the authority to promulgate a rule without affording Congress an opportunity to object. Congress would not be exceeding its constitutional authority by vetoing the proposed rule; rather, the agency would be exceeding its statutory authority by exercising power without meeting the conditions of its delegation.

A few additional implications follow. If Congress can scuttle a rule through a veto, then the president can reserve for himself a similar authority; the president, when he signs a statute, could reserve a portion of the legislative power that he is delegating.

This "executive-administrative" veto might seem jarring, but it should not, and for two reasons. First, this power would remain largely unused because presidents still take significant ownership over administrative rules, though one can imagine that it would be used somewhat more frequently at the beginning of a new presidential administration.

Second, although the executive-administrative veto might seem like a new idea, its principles are as old as the Constitution itself — older, even. The executive-administrative veto is required by the Constitution's Presentment Clause: For any legislative rule to become the law, whether enacted first by Congress or proposed first by an agency rulemaking, it requires the president's assent. Under the approach envisioned here, the president, like Congress, could give his assent through silence — and as such much of the modern administrative state would operate undisturbed. When the chief executive disapproves of a rule becoming final under his tenure, however, it would be his constitutional prerogative to veto it (subject to a two-thirds congressional override).

A one-house veto could also be constitutional under this approach, because the Constitution also requires bicameralism. But we need not necessarily advocate a one-house veto for administrative rules. Recall that when Congress and the president delegate their power, they can decide how much of it to reserve. One can imagine a version of the Rulemaking Enabling Act in which only the House and Senate together can veto a rule. Likewise, the statute need not reserve an administrative veto power to the president. It would be up to Congress and the president to decide on the threshold for the exercise of the administrative veto power.

This proposed approach brings together the greatest virtues of constitutional government and the most salient point made by the progressives who originally argued for the administrative state. "Experts" — that is, those bureaucrats who are most familiar with the area of governing in question — would be permitted to propose solutions to problems, whatever they may be. These proposals, however, would not take effect without at least a modicum of review by the democratic institution charged with legislating — Congress. This model thus fuses technocratic and administrative values with constitutional procedure and political accountability.

Some will criticize this proposal on the grounds that it is impossible to distinguish among exercises of legislative, executive, and judicial power. It is surely right that at least some exercises of power will be hard to distinguish. Nevertheless, it remains true that there are important classes of administrative functions that can be properly classified as either legislative, executive, or judicial. Giving Congress control over some of those cases would be no small achievement.

There is no need at this juncture to define everything that may be an administrative exercise of legislative power. We are in search of workable rules, and we can adopt a simple one: Any action requiring rulemaking on the part of an agency is legislative action, because such rulemakings usually demarcate permissible and impermissible conduct for the first time.

It may be that some rulemakings are truly administrative only; perhaps they are made only for convenience. And just as surely, the focus on rulemaking overlooks other kinds of legislative acts. For example, when an agency's criteria are so vague as to provide no true guide to behavior — for instance, when licenses shall be issued if they are in the "public interest" — then any act determining what is or is not permissible even in a particular case is legislative in nature. If the attorney general's immigration-related discretion is extraordinarily broad, he may be exercising legislative and not executive power. But we are in search of workable rules, and stopping at rulemakings would be a substantial advance over modern practice. Although a fuller explication must await another day, agency rules made through adjudications, such as those regularly created by the National Labor Relations Board, ought also to be subject to the legislative veto power.

THE UNITARY EXECUTIVE

Even if they could see their way to this novel understanding of congressional authority and delegation, conservatives find themselves in a quandary when it comes to executive power. Many believe that a unitary executive is constitutionally required. Thus, the president should have full control not only over the rulemakings and other activities of executive-branch agencies, but also the activities of independent commissions, over which he currently has far less control (Congress is permitted to insulate commissioners from the removal authority of the president). On the other hand, they lament the tremendous growth of power in the hands of our chief executive with the advent of the administrative state. The combination of an unconstitutional state of affairs — a toothless non-delegation doctrine, i.e., the very existence of the administrative state — with a constitutional unitary executive would seem a frightening prospect indeed. If Congress must delegate authority, is it not better to divide up that power rather than have it accumulate in one unitary executive?

Liberals also find themselves somewhat ambivalent about the modern chief executive. On the one hand, as Justice Elena Kagan has demonstrated, they find tremendous value in the political accountability afforded by a regime of presidential administration in which the president takes ownership of rulemakings; such a regime is also more effective at achieving their desired policy outcomes. But on the other, they wistfully recall the dream of apolitical bureaucrats applying technical expertise to social problems.

Constitutional administration would carve out a compromise among these competing positions; it ought to satisfy both liberals and conservatives. The idea is simple: The president would have sole authority over all of the administrative state — independent commissions as well as executive-branch agencies — but only over its executive functions. Conservatives can then rest assured that their constitutional unitary executive will not have all legislative, judicial, and executive powers combined. Liberals, too, would appreciate political accountability across executive actions but recognize the remaining role for more technocratic expertise — and responsiveness to Congress — when it comes to rulemaking or other legislative functions.

Whether the Constitution considers administration to be a unitary kind of power or a bundle of different powers — a debate of serious import among scholars of executive power — is immaterial here. What's clear is that there are some powers — say, enforcement of law by prosecution — which must be wielded by the president and only by the president. Similarly, there are certain powers that are unquestionably legislative or judicial. Whether those powers are now formally classified as "administrative" or not is of little practical significance; the president should have no special power over the administrative state's legislative or judicial functions.

The most obvious way to disentangle the legislative, executive, and judicial strands of the administrative state is to let Congress continue delegating its legislative power to independent commissions. Commissioners would still be appointed by the president with the advice and consent of the Senate, and removable by the president only for cause. Such independent commissions, in other words, should be free to engage in rulemaking without fear of presidential control (or removal).

Their enforcement activities, however, must be subject to presidential control. How can the president control the enforcement activities of the independent commissions without the removal power? Even if we were to grant the president removal power over commissioners, could we ensure that he would not remove them for causes having nothing to do with their enforcement activities?

Perhaps the solution is to create an additional commissioner role with ultimate responsibility for the enforcement activities under its jurisdiction. These U.S. attorney-like commissioners must authorize any enforcement action and be removable by the president, while the other commissioners are not. Many commissions already have directors of enforcement; constitutional administration requires only that these already-existing officials be constitutionally appointed and removable by the president.

It would require a simple statutory enactment of a few short paragraphs to accomplish this innovation, which would not violate any existing doctrine. (Modern doctrine merely permits Congress to insulate independent commissions from presidential removal; it does not require it.) Such a proposal could be modeled on the statute that created U.S. attorneys, with relevant substitutions made. The crucial difference between the two would be the duties of the enforcement commissioners, which would, of course, be much narrower than the duties of U.S. attorneys.

Most of the time, these executive commissioners could work within the administrative apparatus in front of administrative law judges, because many kinds of adjudications were historically considered executive in nature. When it comes to questions regarding rights and liberties that fall under common law, however, the Constitution does not give us the luxury (not that we should want it) of forgoing Article III adjudication; the determination of such rights is the very core of the federal judicial power. This does not mean, however, that administrative adjudications that currently touch on those rights must cease entirely; it may be enough to establish Article III review in these circumstances. Indeed, we already have a model for such review in the bankruptcy and magistrate systems.

JUDICIAL AUTHORITY

This component of the model — judicial review of judicial acts — is the one piece of the puzzle that does not simply follow from our rejection of modern delegation doctrine. Congress does not have any judicial power to delegate, and so, if agencies are exercising judicial power, it is not because Congress granted them that power. It is because the courts have abdicated their own judicial responsibilities.

Article III vests the "judicial power" of the United States in federal courts whose judges enjoy constitutional protections against political influence, including lifetime tenure during good behavior and salary protections. Thus, an individual cannot be deprived of life or liberty — and historically could not be deprived of the fruits of his own labor — without an adjudication in an Article III court, whose judges enjoyed these protections. And yet, today, administrative agencies often adjudicate facts and laws relevant to such rights without de novo review by Article III courts (i.e., review in which the lower court's ruling is given no deference).

So far, encroachments on Article III jurisdiction have been limited to property rights. No judicial precedent has yet permitted an agency to adjudicate the facts where life or liberty are at stake. But agencies have authoritatively determined the law to be applied in criminal actions. In the 2014 case Whitman v. United States, the Second Circuit upheld a jury instruction based on the SEC's interpretation of a section of the Securities Exchange Act of 1934. The defendant, as a result, was sentenced to two years' imprisonment and a $250,000 fine, without Article III's full constitutional protection.

There are a few simple measures that could help mitigate the degradation of Article III in the administrative sphere. First, it is well known that in the bankruptcy context, when private rights are at stake, bankruptcy judges can only make reports and recommendations (of both law and fact). Article III district judges must review those reports and recommendations de novo. The same solution ought to be applied for all determinations of private rights in administrative adjudications.

Congress can restore something of the original constitutional order by requiring de novo review of any agency adjudication — including adjudications of law as well as of fact — that determines a private right. Specifically, Congress can borrow from the existing Bankruptcy Code and the Federal Magistrate Act, which provide the textual precedent for requiring reports and recommendations subject to de novo Article III review. The statute can be simple. It must do just three things: provide for the report and recommendation structure; define the adjudications at stake; and provide a solution to the problem of deference in hybrid criminal-administrative statutes.

A full exposition is impossible here, but not all administrative adjudications involve the private rights to which this statute would apply; indeed, most do not. Private rights are the traditional Lockean rights to life and personal security, liberty (freedom from restraint or imprisonment), and private property. Public rights belong to the public as a whole, and there need be no judicial review of how the government handles such rights. For example, the courts have no authority (absent congressional authorization) to review how a federal-land office assigns public federal land; but they can review a private dispute between two parties claiming that their private rights in that land have become vested. Adjudications over welfare and social-security benefits or immigration status have historically been considered "public rights" that do not require Article III adjudications.

There are some very strong reasons to distinguish between these kinds of property rights. As Caleb Nelson has argued (drawing on the work of Stephen Williams), traditional property rights under the common law and the free-enterprise system depend on government for their protection — government must create the rules of the game and enforce them — but they do not depend on government largess. Thus, if we seek "individual independence from the state," traditional property has special value. That has been understood by theorists of political economy for centuries: As soon as economic livelihood is dependent upon political favor, political freedom vanishes.

JUDICIAL REVIEW

When considering the judicial power under a theory that accepts delegation, we must separate judicial review of legislative, executive, and judicial functions; after all, we now recognize that the administration exercises all three kinds of power. Having discussed judicial review of judicial functions, it remains to consider judicial review of legislative functions and the implications for deference to administrative expertise.

When an agency promulgates a rule that depends on the interpretation of its statutory authority, courts first ask whether Congress has spoken on the specific issue in question. If it has not and the statute is ambiguous, they defer to an agency's interpretation of its governing statute. This is what has come to be known as Chevron deference, after the case in which the principle was most fully articulated. But there remains a deep disagreement over Chevron: Should a court defer to any agency interpretation of its governing congressional statute, even if the court disagrees with that interpretation, so long as the interpretation is a possible one (even if it is not the best one)?

Constitutional administration allows us to draw a parallel. When we understand that agencies are not merely interpreting governing statutes but are rather making law themselves with permission from Congress, we might develop an entirely different intuition as to which interpretive approach to adopt. If agencies are making laws in addition to interpreting them, courts ought to engage in interpretation as if they were interpreting a congressional enactment. It has been observed before that "the relationship of the Constitution to Congress parallels the relationship of governing statutes to agencies." Constitutional administration makes this parallel all the stronger because it recognizes that agencies are in fact exercising the same power as Congress.

Courts ought to be limited to making sure the agencies are acting within their delegated discretion, just as the courts ensure that Congress is acting within its own delegated discretion — that is, within the legislative power granted to it by the Constitution — through judicial review. So long as the agency is acting within the bounds of the delegation made to it by Congress, the agency should have discretion to make policy choices — just as Congress freely makes policy choices within the scope of its legislative power. Indeed, Chevron deference has a specific parallel in the interpretation of congressional statutes under questions of constitutional delegation: the presumption of constitutionality. When the constitutional question is not clear, the courts "defer" to Congress's interpretation of the Constitution.

But the presumption of constitutionality is not so easily triggered; judges do not give up as easily on constitutional interpretation as they seem to give up on statutory interpretation in the context of administrative delegations. No justice has ever argued that merely leaving the constitutional text ambiguous on its face is sufficient to confer interpretive authority to Congress. Rather, the courts must look at text, context, intent, purpose, historical background, general background principles of law, conventions, and so on.

Usually, it is only when "traditional tools of statutory construction" run out that courts deploy a presumption of constitutionality. Because agencies are making law and not merely interpreting existing law, the same approach ought to be deployed in deciding whether a congressional statute genuinely sought to grant agencies the lawmaking power in question. The exact same constitutional values are served by adopting the same method of interpretation in both contexts.

COMING TO TERMS WITH DELEGATION

Any sensible reader of modern administrative-law cases should feel himself torn. On the one hand, the formalism of modern doctrine, which supposes Congress is not actually delegating any of its legislative powers to the administrative state, tends to prize rule of law and is more faithful to the constitutional text on its face. On the other, there can be no doubt that if the framers could see the modern administrative state, they would be aghast at the power of the executive branch. Thus, even those who have recognized that certain functionalist tools might be unconstitutional as originally understood argue that such tools ought to be permitted to balance the accretion of power in the executive. There is something powerfully compelling about Justice White's functionalist vision for administrative law in his Chadha dissent. It is not quite what the constitutional text says, but it looks a lot more like what the text was intended to create.

The notion of constitutional administration advances this debate between formalists and functionalists in the context of the separation of powers and the administrative state. Under a formalist interpretation, constitutional administration would require an accretion of tremendous power in the executive branch only if we accept the current fiction that Congress does not delegate legislative power and thus that its agents in the executive branch have only been exercising executive power all along. Once we recognize that delegation exists and permit the practice, we can apply formalist reasoning to achieve what have originally been functionalist results in many separation-of-powers cases. A formalist, for example, would permit a legislative veto of agency rulemaking, thereby reserving significantly more power to Congress than it currently enjoys.

Accepting delegation would not mean that anything goes. Congress would still not be permitted to delegate legislative power to private individuals, nor could it delegate its power to impeach. We need to accept only that which already exists as a matter of 80 years of historical practice, and which the courts have allowed to exist, and to bring constitutional doctrine into line with that reality.

If modern doctrine reflected these insights, many constitutional conservatives as well as functionalists could breathe more easily when contemplating the administrative state. The activities and powers of each branch of government would be closer to their intended, original operation. Congress would have more power over legislative matters, the president over executive matters, and the courts over judicial matters.

Progress can be made. We need only accept a de facto precedent that we have refused to acknowledge for decades. We need only re-orient our thinking on delegation.