A Chevron Revolution in the Supreme Court? (Defining Ideas) October 29, 2018

The appointments of two conservative justices to the Supreme Court this year has led to speculation—perhaps even an expectation–that the Court will now undertake a conservative revolution.   Most of this discussion has revolved around a turning back of the dramatic social change brought about by the Court with its legal protection of abortion and same-sex marriage.  Yet a social counter-revolution of this kind would be surprising, since respecting judicial precedent has long been a principle of conservative judges.  Instead, one could more readily envision a slowdown of social change from the Court, or even some limitations on existing social rights, than a full-scale revolution.

Peter Wallison’s new book, Judicial Fortitude:  The Last Chance To Rein In The Administrative State (Encounter Books, 2018), rightly contemplates a more likely path for a conservative Supreme Court:  slowing, stopping, or even rolling back the dramatic growth of the administrative state.  As Wallison points out, since the Supreme Court has contributed to the rise of the administrative state, it could at least do its part to curtail it.  In fact, Wallison is optimistic that the Court, exercising powers that it has not used in decades, could do even more than that.

Wallison’s book is timely, given the growing awareness of the problems associated with the administrative state.  Two recent books—Jason Chaffetz’s The Deep State and Michael Lewis’ The Fifth Risk—document the powerful influence of bureaucrats.  President Trump’s campaign promise to roll back two federal regulations for every new one adopted has begun to play out, especially in the environmental field.  Congress passed a bill cutting back some of the regulatory oversight of the Dodd-Frank bill, especially as it pertains to smaller banks.  The Senate has before it the Reins Act, which would take hold of runaway administrative agencies by requiring that Congress approve any major new regulations from the Executive branch.

Wallison’s title, Judicial Fortitude, points to a different approach to reining in the administrative state: relying on the Supreme Court.  Indeed, the subtitle of the book suggests the sense of desperation that he and other conservatives feel about their project:  “The Last Chance To Rein In the Administrative State.”  Given the difficulty of actually carrying out the agenda Wallison proposes, his “last chance” is only slightly more hopeful than Charles Murray’s conclusion (in By the People:  Rebuilding Liberty Without Permission) that by now there is no chance to roll back the regulatory state, with Murray calling upon the people to engage in “systematic civil disobedience” of intrusive regulations.

The case for the Supreme Court to act goes back to its constitutional role of limiting the excesses of the executive and legislative branches when they overstep their constitutional authority.  Under the separation of powers of the Constitution, Congress may not delegate its legislative powers to the president or to an administrative agency, and administrative agencies may not exceed the power delegated to them by Congress.  Wallison and other conservatives agree that such violations of the separation of power doctrine are rampant, and that there has been little or no effective check to stop or prevent them.  The author provides plenty of current examples from the Environmental Protection Agency, the Department of Education’s Office of Civil Rights, and elsewhere.

The difficult questions are whether and how the Supreme Court could step in now to stop the juggernaut of the administrative state that began its dramatic rise in the Progressive Era and, especially, the New Deal?  Wallison proposes two ways—one plausible and the other a stretch—by which the Court could accomplish this.  One is to undo the so-called Chevron doctrine, adopted by the Court in a 1984 case.  Under Chevron, courts should defer to an administrative agency’s interpretation of its own statutory authority if its interpretation is deemed “reasonable.”  As Wallison states, “Chevron, in effect, gave administrative agencies the authority to determine the scope of their authority.” Late in his career, Justice Scalia had begun to express doubts about Chevron and one could see a conservative Court issuing a corrective, if not an outright reversal.   This plausible remedy might at least slow the administrative train, but it would hardly stop it.

The larger and more difficult judicial remedy Wallison proposes is for the Court to resurrect the “nondelegation” doctrine.  Congress may not delegate its legislative powers to agencies or the executive branch.  0ne of the most important books about the power of the administrative state, Constitutional Morality and the Rise of Quasi-Law by Bruce P. Frohnen and George W. Carey (2016), points out that this kind of delegation is now the new normal for Congress.  In complex areas of oversight, Congress passes laws expressing little more than an intention to regulate, leaving the detailed work to government agencies. As always, the devil is in the details.  This almost certainly is, in a classic constitutional understanding, an improper delegation of legislative power by Congress.  But Congress passes the laws, the president signs them, and the agencies happily draft regulations.  No one seems to want to stop it, at least no one in power.

The problem, as Wallison acknowledges, is that the nondelegation doctrine is all but dead at the Supreme Court, and one has to wonder if it could be revived after so long and in the face of such acceptance of Congress’s willing delegation to agencies.  Wallison rightly argues that this doctrine “protects and preserves the role of Congress as a legislature to make the most important decisions for society.”  But he goes on to admit that the Supreme Court has not invoked it since 1935 and “in the 230 years since the ratification of the Constitution, the courts have made little progress in developing a jurisprudence of nondelegation.” Yes, the Supreme Court initially used this doctrine to declare unconstitutional some of Franklin Roosevelt’s New Deal legislation in the first hundred days but, as Wallison writes, Roosevelt’s later appointments to the Supreme Court began to turn that around and by now we live in a different judicial world.

Would I love to see the Supreme Court take this kind of stand against Congressional delegation and agency regulation?  Absolutely.  Do I think it could happen?  No, not really.  Wallison does better at diagnosing the problem than arguing for this as a likely solution.  Moreover, it feels a bit like conservatives would be heading down the road liberals have often traveled:  If we do not like what other branches of government are doing, let’s take it to the Supreme Court.  I readily acknowledge, however, that liberals have often done this to advance a social agenda under broadened interpretations of the “equal protection” and “due process” clauses of the 14^th Amendment, what we sometimes call “substantive due process,” whereas this would be defending constitutional processes.  It is at least a form of judicial activism for the right reasons, using the Court as a brake and not an engine.

I rather think slowing the administrative state is a multi-year, all-hands-on deck project, not an assignment for the Supreme Court.  Admittedly, I am a member of the “Make Congress Great Again” camp.  A large part of the problem is not just that presidents have taken greater executive power and the courts have not stopped the grab, but rather that Congress seems so willing to give up its power.  We see it, especially, in war powers, where Congress actually has the leading constitutional role but instead defers to the president.  As one Congressman said when Congress could have taken up the question of military attacks in Syria a few years ago, but instead adjourned and went home early, a lot of people around here would like the president to “just bomb the place and tell us about it later.”  We see it in presidential declarations of wars on poverty, crime, drugs, terror and the like, where the executive takes over domestic policy from Congress.  Or in the 28 states of national emergency under which we now live that again expand executive power at the expense of Congress.  If Congress does not draw a line and exercise greater courage and activity, no Supreme Court decision will save us from the administrative state.

Party loyalty is also a problem the Supreme Court will not solve.  Members of Congress are now more loyal to their party and its priorities than to their own constituents or to the institutions of Congress themselves.  Congress passed Obamacare on a party-line vote of Democrats and tax reform on a party-line vote of Republicans.  The administrative state continues to grow in new areas that Washington attempts to take over—education through No Child Left Behind, health care through Obamacare—not just in the extent of regulations on a particular issue.

One challenge of being a conservative today is that of being a conservative not only in ends but also in means.  Calling on the Supreme Court to fix problems created by all the branches fails to recognize the Founders’ belief that the judiciary would be the weakest of the branches.  I readily agree, however, that the courts must do their part and, at least in rolling back the Chevron doctrine, Wallison’s book points the way.

To read the essay at Defining Ideas:

https://www.hoover.org/research/chevron-revolution-supreme-court

The Roberts Conundrum (Townhall.com) July 6, 2012

Chief Justice John Roberts was apparently on the fence on the healthcare decision and fell off on the wrong side. And he ended up violating the very principles he was trying to uphold.

After rightly declaring the healthcare bill an unconstitutional stretch of Congress’ power under both the commerce and spending clauses, Roberts strained to uphold the bill under the taxing power. Sources for one CBS story indicate he did so fearing damage to the Court’s reputation for being too political and activist.

But if, as it seems, Roberts actually felt the measure was unconstitutional, he himself played politics to uphold the Court’s reputation over the Constitution. And he strained to, in effect, rewrite the law in order to save it, a classic example of judicial activism.

 To listen to the audio please click on the link: http://townhall.com/talkradio/dailycommentary/643434

Happy Birthday International Criminal Court (Forbes.com) July 1, 2012

Federalism’s Silver Lining in the Healthcare Decision (Forbes.com) June 29, 2012

Perhaps only an academic could appreciate theoretical victories on the battlefield of a major defeat.  But the 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill does actually leave conservatives, and especially those concerned about states’ rights and federalism, some room for encouragement.

The 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill does actually leave conservatives, and especially those concerned about states’ rights and federalism, some room for encouragement. (Photo credit: Wikipedia)

In fact, one could argue that conservatives won all the major constitutional battles in this case but, thanks to some deft footwork by Chief Justice Roberts, still managed to lose the war.  The big constitutional questions in this case were whether there are any limits to the federal government’s power under the Commerce Clause and the conditional spending power and, to each of those questions, a strong majority of the Court said “yes,” and moreover, held that Congress’ actions in this case exceeded those limits.

When this case was first brought, you couldn’t have found more than a handful of legal experts who thought there was a serious chance that the federal courts would rule the healthcare reform bill unconstitutional on commerce clause grounds, yet that is exactly what happened.  People laughed initially at the argument that not buying health insurance constituted economic inactivity and the commerce clause only allowed the regulation of activity, and yet that argument prevailed.  As Chief Justice Roberts wrote in his majority opinion:  “[T]he distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.”  The Court’s conclusion in this regard is powerful and clear:  “The Framers gave Congress the power to regulate commerce, not to compel it.”

But of even greater practical significance was the Court’s holding that the federal government had, through its conditional spending power, unconstitutionally coerced the states into bending their Medicaid programs to the preferences of Congress.  The last major Supreme Court decision in this area, South Dakota v. Dole in 1986, addressed a state complaint that the federal government overstepped its authority when it said South Dakota would lose federal highway money if it did not raise its legal drinking age to 21.  Since the federal government has no constitutional power to set the legal drinking age, it was attempting to use financial leverage to get the states to follow its policy.  The Court held that Congress could deploy its spending power in this way, but that there was a limit, when the financial inducement was “so coercive as to pass the point at which pressure turns into compulsion.”  Not surprisingly, no case has found such a limit to have been reached in the 26 years since.

Today, the Court said the limit on the federal spending power had been improperly crossed by Congress in the healthcare reform bill.  Rather than the “relatively mild inducement” the Court found when five percent of South Dakota’s highway funds were at risk, today’s Court said that losing all of a state’s Medicaid funding was more like “a gun to the head.”  The Court noted that Medicaid spending accounts for over 20% of the average state’s total budget, whereas 5% of South Dakota’s highway funding was less than one half of one percent of its total budget at the time.  So we now know there is some limit beyond which the federal government may not go in withholding state funding to incentivize (bribe?) a state to do Washington’s bidding.

I can hardly wait for some states to follow this holding right back into court to challenge the federal takeover of K-12 education.  Over the last decade, beginning with President George W. Bush’s No Child Left Behind legislation to President Obama’s Race to the Top grants, the federal government has gone from the back seat to the driver’s seat in K-12 education policy.  What was only a decade ago cited as the classic example of a state or local policy matter, K-12 education is now dominated by federal testing and accountability measures, and now the beginnings of a national curriculum.  Although it falls somewhere between South Dakota’s share of federal highway money and the average state’s federal Medicaid money, the Court today opened the door for such a challenge.  Beyond the money, it is the kind of pervasive and dominating scheme that should be examined.  So this is not just a theoretical victory, but perhaps the setting of a practical stage for more state challenges to federal power.

In the end, having won these Constitutional victories, the states and conservatives lost the case because of clever maneuvering by Chief Justice Roberts.  He undercut the commerce clause argument by finding that Congress had the taxing power to regulate healthcare, even though the federal government itself said this wasn’t a tax.  And he cushioned the blow of the Medicaid provision by saying that Congress could only withhold new Medicaid funding, not existing funding, and that Congress surely intended the law to shift to that ground if the Court found any part of the Medicaid funding issue to be unconstitutional.

The high road reading of Roberts’ decision was that he himself was acting conservatively, citing the Court’s appropriate “reticence to invalidate the acts of the Nation’s elected leaders.”  Still, especially when the presumed swing vote of Justice Anthony Kennedy went with the conservatives, it was a bitter disappointment that Roberts went out of his way to rewrite and reinterpret legislation in order to save it.  Still, despite the loss, states’ rights and federalism made significant gains in this decision, and live to fight another day.

To view the Forbes.com article please click on the link:  http://www.forbes.com/sites/daviddavenport/2012/06/29/federalisms-silver-lining-in-the-healthcare-decision/

Urging the FCC to Tune In, Drop Out (Hoover Digest » 2012 no. 1 » Regulation) January 23, 2012

In announcing recently that the Fairness Doctrine would be wiped off the books, the Federal Communications Commission took one small step into the information age. Characteristically, the commission was decades behind the times, and it left other media regulation still stuck in the industrial age and in serious need of rethinking.

A major problem with government regulation of business is that it is based on markets and technologies as they exist when the rules are imposed. In the case of radio, this body of law has largely been the Radio Act of 1927, the Communications Act of 1934, and the Fairness Doctrine adopted by the FCC in 1949. There were fewer than three thousand radio stations in the country in 1949, compared to the fourteen thousand that ply today’s robust and competitive market.

The Fairness Doctrine required radio stations to air opposing points of view. So, for example, if a radio host or guest favored a particular policy, the station was obligated to air a message against. Perhaps this made some sense when a geographic market had few stations, but today, with satellite radio, Internet radio, and thousands more terrestrial stations, every point of view under the sun can find its way onto the air. For decades, the market itself has provided protection for minority points of view, so the primary question should be why it took government so long to catch up to market realities.

If the Fairness Doctrine were enforced today, there would be no Rush Limbaugh, no Sean Hannity, no talk show hosts with a point of view. Whether you enjoy their programs or not, these radio talkers have rescued and re-energized talk radio. If a listener wants balance or fairness, he or she can simply turn the dial to another station whose talkers have a different point of view. Rather than diversity on every program, there is a diversity of programs and even a variety of distinctive stations and networks—a market that achieves the same fairness goals intended by the outdated Fairness Doctrine.

In the end, like many government regulations, the Fairness Doctrine had become a political football as much as an agency rule. The FCC suspended it during the Reagan years but didn’t take it off the books. Then for years, concerned about the rise of conservative talk radio, Democratic leaders in the House and Senate threatened to put it back in force. Finally it died as part of President Obama’s push to satisfy business that he was seeking to streamline government and eliminate unnecessary regulation. Even now, the moldering regulation doesn’t seem fully dead. Some of the Occupy Wall Street protesters, for instance, have called for reinstating it. Such is the life of federal regulatory schemes.

Taxpayers continue to provide up to 20 percent of public broadcasting’s budget. Some of its executives make more than the president of the United States.

What federal agencies in general, and the FCC in particular, need to be concerned about is whether federal regulations continue to make sense as markets and technologies develop. In that sense, eliminating the Fairness Doctrine was no better than a baby step into the information age. What about the equal time rule, a kind of companion to the Fairness Doctrine? It requires that if one candidate for an office appears on the broadcast media, other candidates must be given equal time. This rule also is anachronistic and has been so swallowed up in exceptions as to be meaningless. If Donald Trump had run for president, for example, his appearances on The Apprentice might require equal time for other candidates, unless the show were on cable television, which is a meaningless distinction in these days of cable and satellite TV. If a candidate sits down for a few minutes with Letterman or Leno, another exception for “news/interviews” illogically comes into play. Isn’t it time for equal time to go the way of the Fairness Doctrine?

And how about government subsidies and funding for public broadcasting? Again, the support may have made sense when there were only three or four television networks. If there’s a need for public broadcasting’s programs today, shouldn’t they compete for funding and airtime with everyone else? I find little justification for a nearly bankrupt government to spend money on television and radio programming when we live in a 24/7 media cycle. Yet taxpayers continue to provide more than $400 million for public broadcasting, roughly 15–20 percent of its budget, and some executives in that business make more than the president of the United States. Further, it drags the government directly into questions of political content, exemplified by the controversy surrounding commentator Juan Williams and the termination of his contract by National Public Radio. The bipartisan budget deficit commission recommended phasing out taxpayer subsidies to public broadcasting.

So, one cheer for the FCC for burying the Fairness Doctrine. But let’s hold off on three cheers until more work is done to align government policy toward the media with the market realities of the media age in which we live.

Special to the Hoover Digest.  Link to the article:  http://www.hoover.org/publications/hoover-digest/article/105206