Neil Gorsuch’s Laudable Crusade Against the Administrative State
In my recent post on whom Donald Trump should select for the Supreme Court, I argued that Judge Neil Gorsuch was actually better than Justice Scalia on one key issue: his crusade against the overweening power of the administrative state:
Gorsuch also differs from Scalia for the better in his views on the Chevron doctrine: the principle that says courts will defer to executive agency interpretations of law when they are reasonable. For most of his career, Scalia tended to apply the Chevron docrtine with few questions, often showing a disturbing deference to executive agency interpretations of laws (though he seemed to hint at a slight change of heart in more recent cases). Gorsuch, by contrast, has been a fierce critic of Chevron — which is, in my opinion, a good thing, as the executive has too much power these days. Allowing the administrative state to serve as all three branches of government without genuine scrutiny from the courts is not what the Founding Fathers had in mind, and Gorsuch seems to understand this.
I want to elaborate on that today, because it may seem like a minor thing, but it’s not. It goes to the heart of the separation of powers.
There are many good books that discuss the dangers posed by the administrative state. One that stands out is Charles Murray’s By the People: Rebuilding Liberty Without Permission. Murray describes how absurd regulations, completely untethered from common sense, have become ubiquitous in the lives of American businessmen. Fighting these regulations is well-nigh impossible because the bureaucracy serves as lawmaker, enforcer, and even judge. Your challenge to a stupid regulation must first be adjudicated by an administrative law judge who is an arm of the same agency that wrote and enforced the ridiculous regulation. But to make matters worse, when you then go to court, judges apply something called the “Chevron doctrine,” in which they almost always defer to the agency’s decision, as long as it is “reasonable.”
Even Justice Scalia championed the Chevron doctrine for most of his career — though he was starting to get better. It’s a dangerous doctrine that makes judicial review toothless. It’s not what the Founders had in mind when they set up our system. And in a concurrence in a case called Gutierrez-Brizuela v. Lynch, Judge Gorsuch showed that he understood. Here are the opening paragraphs of his opinion:
There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth. In enlightenment theory and hard won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers. In the avowedly political legislature, the framers endowed the people’s representatives with the authority to prescribe new rules of general applicability prospectively. In the executive, they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people. And in the judiciary, they charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes.
This allocation of different sorts of power to different sorts of decisionmakers was no accident. To adapt the law to changing circumstances, the founders thought, the collective wisdom of the people’s representatives is needed. To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee. And to resolve cases and controversies over past events calls for neutral decisionmakers who will apply the law as it is, not as they wish it to be.
Even more importantly, the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment — and raising — along the way, too, grave due process (fair notice) and equal protection problems. Conversely, what would happen if politically unresponsive and lifetenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people.
OK, if you’re not already standing on your chair and applauding, then go see a doctor, because you may not be feeling well. That is a stirring passage that tells me all I need to know about Judge Gorsuch’s priorities, his writing style, and his commitment to freedom and the rule of law.
He will be a great Supreme Court Justice.
[Cross-posted at RedState and The Jury Talks Back.]
Based on my expectations, DT’s administration is already a significant success.Patrick (613bcf) — 2/1/2017 @ 10:51 am
I agree, and would like to add an argument.
People complain, quite bitterly, about the dysfunction of the congress. But they don’t think much about the cause of that dysfunction – that is the rise of the courts and administrative state.
If you are a congressman, why make a controversial decision, that might cost you your office, when you can have an unelected judge do it for you? or better yet, a faceless (and un-fireable) bureaucrat? The more power that is ceded to these decision-makers, the more it encourages congressmen to avoid controversy. It also encourages them to take harder and harder stands on the issues, content in the fact that, ultimately, they won’t be responsible for the positions they take.
It all becomes theater.Tenn (131b65) — 2/1/2017 @ 11:23 am
A great judge.
A great nomination. Thank you, President Trump.
A great post. Thank you, Patterico.
Today is a great day.ThOR (c9324e) — 2/1/2017 @ 11:40 am
Great comment, Tenn.ThOR (c9324e) — 2/1/2017 @ 11:42 am
@Patterico: Murray describes how absurd regulations, completely untethered from common sense, have become ubiquitous in the lives of American businessmen.
Another great set of books is those by Phillip Howard, The Death of Common Sense and its sequels. His is a more left perspective, he favors an energetic government, but he thinks government should do things by putting people in charge–and firing them when they do badly or wrongly–rather than trying to create self-executing rules that substitute for judgment. Currently these rules are administered by people who can blame the process and dodge the responsibility.Gabriel Hanna (64d4e1) — 2/1/2017 @ 11:43 am
Gabriel Hanna (64d4e1) — 2/1/2017 @ 11:43 am
I wish they didn’t have a set of rules for approval of new drugs – and now medical devices. Progress has been greatly slowed down there, and they sometimes even take a step back.
In the field of surgery we don’t have the necessity of FDA approval, and we see both the good and the bad with that. New things can be tried that help – bad practices can continue for a long time.Sammy Finkelman (8a673f) — 2/1/2017 @ 11:55 am
Yes, it is a great day! Excellent opinion and post.
What I really hate is the “show trials” of congressional hearings that put on a show for the base while accomplishing nothing. Lois Lerner, Mr. Koskinen…so many scoundrels who hid behind their cowardice.
And the deep state has its own police force(s). No good can come of that.Patricia (5fc097) — 2/1/2017 @ 11:59 am
I strongly disagree here with respect to criticism of Chevron.
Chevron’s holding is an assertion of the judicial principle of legal stability. Without Chevron, what tends to happen is that rather than a law having one meaning, subject to some minor exceptions, judges are empowered to act as activists via interpretation – and laws start to have multiple meanings between circuits, or even between district courts in the same circuit.
Empowering the judiciary in that sort of manner is not conservative in the least, nor does it promote democracy or liberty. It merely empowers judicial despotism.
To the extent that the Courts want to limit the ability of Congress to delegate legislative power to have a law pass Constitutional muster – requiring definitive guideposts, etc., that is great.
To the extent that the Courts want to impose a higher standard (i.e. something less than Chevron, or Auer, deference) on departing from long-standing regulatory interpretations – like the D.C. Circuit did for some time, until recently overruled by the Supreme Court – that promotes both legal stability and a constraint on the executive.
But going back to the pre-Chevron, and even pre-Auer, paradigm is going back to a time when judges were empowered to interpret laws through their partisan inclinations without any serious check (Skidmore deference does not constrain judges much at all) – that is a bad, bad idea for anyone who subscribes to Conservative values.GrantLR (161898) — 2/1/2017 @ 12:15 pm
A biotech guy I know says that the reason we’re running out of antibiotics is because the FDA keeps insisting that they have to be better and safer than other drugs. Just as good isn’t good enough.
Which means that as resistance makes antibiotics useless, there’s no new ones in the pipeline, because everybody knows the FDA will strangle them before they get approved, so nobody bothers.
There’s a place an executive order would come in handy, since this is *all* regulation; the actual law that congress wrote says almost nothing about which drugs get approved.matt d (d4aa6f) — 2/1/2017 @ 12:22 pm
history instructs that the harvardtrash proof will be in the harvardtrash pudding
but what’s heartening is Mr. Trump clearly understood how important it is he got this decision right
he’s very good at making these kinds of wise far-sighted choices
I only hope Mr. Gorsuch has the integrity to honor the trust and faith Mr. Trump has invested in himhappyfeet (28a91b) — 2/1/2017 @ 12:38 pm
“OK, if you’re not already standing on your chair and applauding, then go see a doctor, because you may not be feeling well. That is a stirring passage that tells me all I need to know about Judge Gorsuch’s priorities, his writing style, and his commitment to freedom and the rule of law.”
With all due respect, and to take nothing away from Judge Gorsuch, most of that passage is simply a recitation of basic separation of powers principles. It evidences an understanding of the basic structures of our government, but that should hardly strike us as an impressive quality in a federal judge, much less a Supreme Court Justice. The vast majority of people reading a Tenth Circuit opinion already know and understand all of that, which makes it feel like pandering.
I do agree with Judge Grouch’s point that “Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”Leviticus (efada1) — 2/1/2017 @ 12:40 pm
That particular auto-correct is going to wreak silly havoc in the coming weeks.Leviticus (efada1) — 2/1/2017 @ 12:40 pm
The problem is judges have decided to use their power to advance “social justice” which means the leftist agenda.
A while back BobStewartatHome put it this way:Rev. Hoagie® (785e38) — 2/1/2017 @ 12:41 pm
“But going back to the pre-Chevron, and even pre-Auer, paradigm is going back to a time when judges were empowered to interpret laws through their partisan inclinations without any serious check (Skidmore deference does not constrain judges much at all) – that is a bad, bad idea for anyone who subscribes to Conservative values.”
Point taken, but I would (frankly) much rather have an out-of-control judiciary than an out-of-control executive.Leviticus (efada1) — 2/1/2017 @ 12:51 pm
“John Marshall has made his decision; now let him enforce it.
– Andrew JacksonLeviticus (efada1) — 2/1/2017 @ 12:52 pm
Meeting with Trump (a self-proclaimed sexual predator, self-proclaimed child sex abuser, racist, statist and serial liar) and accepting a nomination from him raise grave doubts about Gorsuch’s judgment and ethical standards.
A real conservative with any moral courage would tell Trump to go pound sand.Dave (2c5d6d) — 2/1/2017 @ 12:53 pm
being skeptical and wary of chevron at the supereme court level is vastly different than being skeptical of chevron at the circuit level no?happyfeet (28a91b) — 2/1/2017 @ 12:55 pm
A real conservative with any moral courage would tell Trump to go pound sand.
this is not true did you not see pervy Mitt “bad touch” Romney’s slurpy egg mcmuffin applauding the lawless arrogance of extreme pussyhatter Sally Yates?happyfeet (28a91b) — 2/1/2017 @ 12:58 pm
9. matt d (d4aa6f) — 2/1/2017 @ 12:22 pm
And then, on top of
that, medical advice given to doctros by government agencies and academics and professors is to discourage the use of new antibiotics, so they don’t get “spoiled,” while on the other hand ot costs more and more every year to get a drug approved, and therefore it doesn’t make sense to get a drug approved that won’t be used much. And the price is sky high for anything new. Look at the cure for hepatitus.
Anything unpatentable, or anything that some other company would own the patent on, is not worth researching. And now that this is applied to medical devices there are all sorts of things we don’t see – or that sometimes we do see, but it disappears. Like the iBot.
Another thing drug companies do is get approval only for one use. That makes it legal to sell. And they rely on medical journals to tell doctors how else it could be used. It’s not legal for he company to mention an unapproved use.
There are many more possible unapproved uses taht aren’t used at all. For instance, to give you an unusual indication, the diabetes drug metformin – brand names Glucophage, Glucophage XR, Glumetza, Fortamet or Riomet) is a good drug for delaying the onset of old age. And nifedipine (Procardia) is a male borth control pill (that many people took without knowing what it did.)
Someone proposed – it’s not exactly a new idea – that for certain drugs, especially antibiotics, the government award prizes and buy up the patent.
It’s only expensive because of the terribly long and difficult drug approval process.
This still does not solve the problem of quality in manufacturing regulation. That’s getting tougher. So much so that people can buy up a company or a factory making an old generi and get a monopoly on it. And there’s this – Medicare and other insurance regulations limit the amount of money that can be paid for a drug, so in case there’s a shortage you can’t offer a higher sum of money to divert use of a drug or get a new manufacturer started by contracting to pay a lot for a year or two.
It is a good thing the FDA doesn’t regulate food this way, or all kinds of foods would be disappearing from the market.
This is 100% wrong
and Donald Trump knows nothing about this – he has never said a word about it that I know.
It’s not so easy to reverse regulations, but it is cerainly easier to appoint different people – the FDA is not an independent. Of cousre, were Donald Trump to do anything in this regard Democrats would be screaming he’s endangeroing people – people could get poosoned.
I think what we really need is legislation: The creation of ERDA – the End Run Drug Agency- where a committee of 60 doctors would be set up that could approve anything – and only a certain fraction would be needed.Sammy Finkelman (8a673f) — 2/1/2017 @ 1:17 pm
The kid next door sets up lemonade stand, and all heck breaks loose.
Or as related in the CBS Evening News on Sunday I think, someone in high school built a machine for selling soda. He had to take it azway but he’s now trying to get some kind of approval to sell it somewhere in the school.Sammy Finkelman (8a673f) — 2/1/2017 @ 1:21 pm
@Dave:Meeting with Trump (a self-proclaimed sexual predator, self-proclaimed child sex abuser, racist, statist and serial liar) and accepting a nomination from him raise grave doubts about Gorsuch’s judgment and ethical standards.
It’s not Trump you discredit when you retail a string of lies like this. And when you say a man like Gorsuch deserves to have “grave doubts” raised about him merely because he accepted a nomination to a position which he will hold long after Trump is gone–that makes you sound like a lunatic, frankly.Gabriel Hanna (64d4e1) — 2/1/2017 @ 1:24 pm
Some bad regulations are passed by unaccountable legislators who don’t fear not getting re-elected. Like the New York City bag fee, passed by the City Council last year. Term limits doesn’t prevent that.
There’s some attempt in the state legislature to get this reversed but I am not sure theer is much hope.
The people who did this first got this approved in certain small localities.
do they really expect peoplle to carry their own bags? Small bags? Maybe the way some people live this is no problem. People will in fact pay the fee.Sammy Finkelman (8a673f) — 2/1/2017 @ 1:24 pm
Would you say that anyone who accepted a nomination from Hillary Clinton didn’t deserve to get the job by virtue of that fact alone?
Donald Trump is not trying to nominate exclusively bad people, but I don’t think if you would have been able to say the same thing about Hillary Clinton.Sammy Finkelman (8a673f) — 2/1/2017 @ 1:26 pm
GrantLR (161898) — 2/1/2017 @ 12:15 pm
Grant – which SC case are you referringJoe (debac0) — 2/1/2017 @ 1:34 pm
Thanks – I am not agreeing or disagreeing, – I am not familiar to the case, so just trying to get up to speed again thanks for the insight.
That is a slightly tougher call. I think Hillary is a dishonest crook, but she has not bragged about committing sexual assault, bragged about peeping at naked little girls (or boys), publicly used racial and ethnic slurs, or illegally discriminated against black people (or others) looking for housing.
On the other hand, she is every bit as much of a statist as Trump, and certainly a liar (albeit not in the same league). She has also been endorsed and financially supported by Donald Trump.
So, yes. I think a putative conservative who accepted a nomination from Hillary Clinton would very likely be subject to intense scrutiny and criticism. And rightly so.Dave (2c5d6d) — 2/1/2017 @ 2:10 pm
@Dave:she has not bragged about committing sexual assault, bragged about peeping at naked little girls (or boys)
Yeah, this didn’t actually happen. By retailing lies, you insulate Trump against true charges.
You can’t keep outrage at 11 without making yourself look like a crazy person who should just be ignored.Gabriel Hanna (64d4e1) — 2/1/2017 @ 2:16 pm
Dave, a post-pubescent female teenager in a beauty contest is not “a little girl.”
Anyhow, if you believe conservative judges shouldn’t accept a nomination to the Supreme Court because President Mr Donald fails to meet your standards, then who exactly should he nominate — progressives?Cruz Supporter (102c9a) — 2/1/2017 @ 2:33 pm
T-Rex confirmed as SoS. 56/43.
Conservative ideologues will be screening ‘Moscow On The Hudson’ tonight.
“Puttin’ On The Ritz” – Irving Berlin – 1927DCSCA (797bc0) — 2/1/2017 @ 2:44 pm
Yeah, except it did. He was proud of it.
I would say a crazy person is one who denies statements recorded on tape.
The only uncertainty is whether the youngest of the Miss Teen USA contestants Trump bragged about violating was 14 or 15.
Here’s an experiment: pretend you’re Donald Trump. Try waltzing into the girl’s locker room at your local high school or junior high school while the kids are showering and getting dressed, and asking “Is everyone okay?”. Then let us know where your name ends up.Dave (2c5d6d) — 2/1/2017 @ 2:54 pm
The words you used were self-proclaimed sexual predator and your quote does not say that. Lie #1.
The words you used were bragged about peeping at naked little girls (or boys) and your quote does not say that.
I would say a crazy person is one who denies statements recorded on tape.
A crazy person mentally substitutes his own reality for the objective one, and cannot tell the difference. A crazy person cannot change his mind and will not change the subject.
There is nothing wrong with Gorsuch, even if your lies were true, and that is why I said you sound like a lunatic.Gabriel Hanna (64d4e1) — 2/1/2017 @ 3:12 pm
Now that is what I call a “pwning.”felipe (023cc9) — 2/1/2017 @ 3:15 pm
Joe (debac0) — 2/1/2017 @ 1:34 pm
The recent case I was referring to Perez v. Mortgage Bakers Ass’n, 135 S.Ct. 1199 (2015), Scalia, Alito, and Thomas, concurring seperately, which overturned a line of cases encapsulated by Paralyzed Veterans of America v. DC Arena LP, 117 F.3d 579 (D.C. Cir. 1997), which held that an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted interpretation.
This relates less to Chevron deference and more to Auer deference; however, Scalia’s concurrence (and the skepticism of Chevron attested to therein) gets us back to the point. Thomas goes even further. I think that they are wrong.
In fact, I think that they fell pray to formalism in overturning Paralyzed Veteran’s of American, in that Agency guidance that vastly changes the meaning of a regulation can well be understood to have the impact of re-writing the regulation entirely – giving it new meaning – such that the APA’s notice and comment provisions should apply.GrantLR (161898) — 2/1/2017 @ 3:19 pm
With regard to Confession #1, Trump later said he was lying. That is the meaning of describing it as “locker room talk”
I think he was certainly lying about women letting himd do it (nk thinks he was talking about starlets, who did let him do it) Afterwards some women came out and claimed taht Trump had done just that to them (ignoring the fact that Trump had claimed they did not try to escape him) Some of these women seem to have been lying, partivcularly the one who said this happened to her oboard a Barniff flight in the late 1970s on aBoeing plane of the type Braniff didn’t use. One claimed to have met Melania Trump accidently later in the street, and that Melania had said why don’t we see you anymore – this about a People Magazine reporter. Melania denied it, and said she wouldn’t recognize her on the street, and the woman came forth with a witness to the encounter plus several other people she had allegedly told about it. None of them were deposed.
Confession #2 might very well be true (but note Trump was trying to impress someone) He did nt say hat he touched any of them.Sammy Finkelman (8a673f) — 2/1/2017 @ 3:33 pm
Dave, a post-pubescent high schooler is simply not “a little girl.”
Anyhow, ogling post-pubescent high schoolers is not “sex abuse.”
And your quote from Access Hollywood is revealing because as you admit, Mr Donald had said, “When you’re a star, they let you do it.”
That’s right, Dave, they LET you do it.
You may want to consult with a therapist about that puritanical rage.Cruz Supporter (102c9a) — 2/1/2017 @ 3:42 pm
“Well, I’ll tell you the funniest is that before a show, I’ll go backstage and everyone’s getting dressed, and everything else, and you know, no men are anywhere, and I’m allowed to go in because I’m the owner of the pageant and therefore I’m inspecting it. You know, I’m inspecting because I want to make sure that everything is good. You know, the dresses. ‘Is everyone okay?’ You know, they’re standing there with no clothes. ‘Is everybody okay?’ And you see these incredible looking women, and so, I sort of get away with things like that.”
– Donald Trump
Wanna discuss the quote for what it actually is, Gabriel? These are the actual words, this is the actual admission, of Donald Trump.
Fair for the media to cover these particular words?Leviticus (efada1) — 2/1/2017 @ 3:44 pm
How does this not constitute Trump “bragg[ing] about peeping at naked little girls”?Leviticus (efada1) — 2/1/2017 @ 3:45 pm
@Leviticus:These are the actual words, this is the actual admission, of Donald Trump.
Fair for the media to cover these particular words?
Never said it wasn’t.
Wanna discuss the quote for what it actually is, Gabriel?
That’s the key point right there. The quote is what it is, and not what Dave said it was.
And the last time we discussed those quotes, you tried to run fallacy of equivocation, and I’m not going to play.Gabriel Hanna (64d4e1) — 2/1/2017 @ 3:49 pm
@Sammy:women letting himd do it
By “him” of course you mean Billy Bush, the person to whom Trump was speaking. Because “you” is of course a second person pronoun.
I know that sometimes people use “you” where the older, British-y sort would use “one”. As in “you can’t be too careful” meaning “one can’t be too careful old chap”. And in that case, Trump meant some unspecified person.
But there is no dialect of English in which “you” means “I” or “me”, first person.
And there we are. Sticking to the exact words used, and not making things up that English-speakers do not say.Gabriel Hanna (64d4e1) — 2/1/2017 @ 3:55 pm
@Leviticus:How does this not constitute Trump “bragg[ing] about peeping at naked little girls”?
I’d suggest consulting a dictionary if you are not sure why “little girl” is not identical with “incredible looking women”.Gabriel Hanna (64d4e1) — 2/1/2017 @ 3:57 pm
1. the female human being, as distinguished from a girl or a man.Gabriel Hanna (64d4e1) — 2/1/2017 @ 3:59 pm
2. an adult female person.
3. a female attendant to a lady of rank.
4. a wife.
5. the nature, characteristics, or feelings often attributed to women; womanliness.
6. a sweetheart or paramour; mistress.
7. a female employee or representative
@Dave, Levi, Sammy, gfy.Steven Malynn (d29fc3) — 2/1/2017 @ 4:09 pm
“I’d suggest consulting a dictionary if you are not sure why “little girl” is not identical with “incredible looking women”.”
– Gabriel Hanna
I’d suggest you do a little more research on the actual age of the contestants in those pageants. Trump and Roman Polanski may think that a 14-year-old is a “woman,” but most of us don’t.Leviticus (efada1) — 2/1/2017 @ 4:11 pm
But by all means, don’t play. I could tell you didn’t enjoy it the last time someone tried to get you to have a meaningful conversation on this topic.Leviticus (efada1) — 2/1/2017 @ 4:12 pm
You are conflating his brags about the Miss USA pageant (all over 18) in 2005 on Stern, and later unproven allegations made in 2016 stemming from 1997 miss teen USA – 19 years later (after Trump wins R nomination) 5 former teen contestants claim trump waltzed in like he owned them, 15 former teen contestants at the same pageant say never happened.
So, you are claiming “he admitted” but Dave is linking to unproven allegations – not made until 19 years later.Steven Malynn (d29fc3) — 2/1/2017 @ 4:20 pm
Oh please. Yes it does.
From the Department of Justice website:
Yes it does. He bragged about peeping at the naked contestants of his pageants. Among the contestants that he peeped at were girls as young as 14 or 15. So he bragged about peeping at them.
Words mean things. If Tom Brady says “We really kicked our opponent’s ass last Sunday”, and his opponent last Sunday was Pittsburgh, then he bragged about kicking Pittsburgh’s ass.
I realize you wish the facts were otherwise, but denial won’t change them. Ad hominem attacks on me won’t either. By his own admission, Donald Trump is an evil man who brutalizes women and exploits children for sexual gratification.Dave (2c5d6d) — 2/1/2017 @ 4:29 pm
The problem is not deference, but power. These agencies were NEVER INTENDED to have the kind of untrammeled power that they now exert. Included in the enabling legislation for many agencies was a proviso that, once a regulation was issued, either House of Congress could veto the regulation by a majority vote. Congress viewed this as retained legislative power, and as a check against unwise use of the power they had deferred.
This system worked well, until one day someone who wanted something a vetoes regulation promised, and they sued. In 1983, The Supremes struck down the single-house veto by a vote of 6-1-2, White and Rehnquist dissenting and Potter Stewart concurring while saying it was a bad idea. There were a few dual-house veto rules but it was assumed they would fall too.
The Court suggested that the only constitutional way for Congress to block a regulation would be to pass a new law and get the President to sign it.
The argument that the dissenters made was that without a legislative check, the Executive, through his regulatory agencies, could effectively write new law with no legislative input. This was dismissed as either unlikely or an unfortunate consequence of the Constitution. They found the veto separable because otherwise they would have had to kill all those agencies as well.
Fast forward to 2016. President Obama has clearly used these agencies just as the dissenters feared. A new law (the REINS Act) is being moved through Congress, which would require Congressional confirmation of major regulations. It’s EFFECT would be the same as the single-house veto, but perhaps the structure of it would pass muster. Especially on the coming Court.Kevin M (25bbee) — 2/1/2017 @ 4:33 pm
As for peeping, give it a rest already.Kevin M (25bbee) — 2/1/2017 @ 4:36 pm
No.Leviticus (70ca80) — 2/1/2017 @ 4:56 pm
So what?Rev. Hoagie® (785e38) — 2/1/2017 @ 5:34 pm
@Sammy:women letting himd do it
38. Gabriel Hanna (64d4e1) — 2/1/2017 @ 3:55 pmSammy Finkelman (8a673f) — 2/1/2017 @ 5:54 pm
So you’re telling me Sammy that as an experienced adult male you never ran across that kind of bull crap braggadocio before? You never met the A-hole who always bragged like that but we all knew got nothin’? Guys like this…Rev. Hoagie® (785e38) — 2/1/2017 @ 6:05 pm
Kevin M (25bbee) — 2/1/2017 @ 4:33 pm
The difference is what happens if Congress doesn’t pass a law.
The unconstitutional way was that the regulation stands unless one House vetoes it. The constitutional way is the regulation falls unless both houses of Congress approve.
I think also there’s another thing, under current law, the Congressional Review Act of 1996. What that is, is rules for both houses (which can be enacted in the form off a law) “Fast Track” for trade agreements was that sort of thing.
The rule can say that it is easy to put a regulation up for an up or down vote. That becomes important now, now that you have a Republican president who will sign a bill repealing a regulation.
There is a 60 day clock, which like a football game 60 minute clock is really longer, except that in many cases the Obama Administration never even started the clock running. The 60 days is not calendar days, but legslative days, because that 60-day period is a rule in both houses.
Now, understand all of this is just rules of both houses. You could repeal a 20-year old rule, too, by legislation.
The thing about killing the rule even in future adminisrations is that teh Congressional Review Act says that if a rule is repealed under its provisions, agencies cannot reissue it in “substantially the same form” unless specifically authorized by future legislation. (because the legislative authority has been knocked out from under them)Sammy Finkelman (8a673f) — 2/1/2017 @ 6:13 pm
The unconstitutional way was that the regulation stands unless one House vetoes it. The constitutional way is the regulation falls unless both houses of Congress approve.
In both cases it fails the test imposed in Chadha: That the only way for Congress to act is to pass a law and present it to the President for his signature or veto. There is no presentment here.Kevin M (25bbee) — 2/1/2017 @ 6:59 pm
The CRA method is cute, but the Courts will not allow this kind of smart-ass gotcha procedure. The technical failures of Obamacare that the Courts have papered over should make that clear.
OTOH, Congress could simply pass laws that undo various past regulations going back to FDR if they wanted. SO long as they can get the President to sign them, a law trumps all. It’s a long established fact that past Congresses cannot bind future ones.
Again, the issue is presentment.Kevin M (25bbee) — 2/1/2017 @ 7:05 pm
Patterico, you should add a tag, eith ((or both) Gorusch or SCotUS Nominees.
There is likely to be a lot of interest in this topic in the next couple years.IGotBupkis (ed5bb2) — 2/5/2017 @ 5:50 pm