No, unaccountable government agencies aren’t “democracy in action”

Some progressives are openly claiming all power resides with federal agencies, and your power is limited to voicing your opinion.  They say they care deeply about democratic norms and assaults on democracy, while they assault every norm there is and redefine democracy at a whim, outright proposing technocratic authoritarianism and calling it democracy.

Recent Supreme Court rulings, such as the majority decision striking down President Biden’s vaccine mandate, have prompted progressives to claim conservative justices are engaging in a new form of judicial activism.  They believe the court hasn’t been sufficiently deferential to the alphabet soup of regulatory bodies, allowing them to make new law on a whim without authorization from Congress.  The logic here is pretty simple and straightforward:  Congress authorizes a government agency to exercise control over a certain sphere.  Therefore, within that sphere, the agency’s regulations should supersede the opinion of the Supreme Court and the agency itself should decide the limits of its own lawmaking authority.  The process by which Congress creates these agencies is known as the delegation of legislative power, and has been used since the 1930s under the Constitution’s “Necessary and Proper” clause.  The real explosion in usage, however, wasn’t until the 1960s and 1970’s with the creation of the Environmental Protection Agency, the Occupational Safety and Health Administration, and the Consumer Product Safety Commission.

Today, these agencies regulate almost every aspect of public life, from the foods we eat and the funds we save and borrow, to the products we buy and where we work.  Earlier in the country’s history, however, the government generally followed the separation of powers proscribed by the Constitution, relying on Congress to pass laws regulating industry and economic activity without the agency middle-man.  The executive branch under the President was responsible for enforcing those laws, but unable to make new ones in the guise of regulations.  Thus, the Constitutional issue underlying the modern agency structure is equally simple:  Congress is the sole lawmaking body in the United States.  The creation of regulating agencies delegates that authority to a different branch of government as these agencies ultimately report to the President in the executive branch.  Overall, the Supreme Court has supported this approach despite the potential Constitutional issues, deferring to the agency in question and granting them the appropriate authority.  This approach is said to have been fully codified in 1984, when the court ruled unanimously in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc (NRDC).

The question at the time was over the meaning of the word “source” in an environmental regulation.  Ironically, the complaint was that the agency in question under-regulated an industry, how times have changed.  Congress amended the Clean Air Act of 1963, requiring all companies to submit to a “new-source review” process before building or installing any major emitter of air pollutants, but “source” wasn’t discretely defined, so the Environmental Protection Agency supplied the definition.  Their original definition applied to major changes or additions to plants or factories, but in 1981 this was amended with a potential loophole that allows companies to offset emissions by expanding in some areas and reducing their footprint in others.  The NRDC sued over the new definition, but the court ultimately decided to defer to the agency in what has been known as the “Chevron deference” doctrine.  They would continue this deference in the future provided “the agency’s answer is based on a permissible construction of the statute.”  Justice John Paul Stevens wrote the majority decision, “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute…Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Since then, progressives have taken this to mean that the Supreme Court will defer to the agency on almost every conceivable matter, even though the ruling doesn’t actually say that.  They argue that the regulation-making power of agencies is critical to the functioning of the country and democracy itself.  Kimberly Wehle, writing for Politico, summarizes this position, referring to “the viability of federal regulations as the ongoing bread-and-butter means of passing laws that span virtually every aspect of American life, from workplace safety and environmental protection to financial regulation and national child welfare.”  In her view, Congress is too dysfunctional to do its job, and the agencies are all we have, “Because our polarized Congress is shockingly dysfunctional when it comes to substantive policy,” we need these agencies for “for the country’s legislative needs.”  In other words, agencies are the new legislative bodies.  Ms. Wehle and others go so far as to claim that arguing otherwise is unconstitutional, for the Constitution doesn’t contain any limits on agency’s power.  Any alternative doctrine, like the reasoning for the ruling against Biden’s mandate, “was made up by the Supreme Court. It’s not in the Constitution”  Conveniently forgetting, of course, that the Constitution doesn’t say anything about agencies at all, though it does specify the separation of powers.

Regardless, they are not asking the right Constitutional question.  It may well be true that Congress is currently dysfunctional and cannot be trusted, but that doesn’t mean the Constitution no longer applies and we should defer to the agencies in all cases.  The real question raised by the Chevron case is what constitutes a “permissible construction of  the statute?”  For example, is it permissible to extend a workplace safety law beyond the confines of the workplace and into personal medical decisions?  Or can an agency established under the telecommunications act of 1934 decide on its own that the internet is actually under its own purview, creating a new Net Neutrality standard out of thin air, even if the law itself predates the internet by decades?  Can the Environmental Protection Agency decide on its own that a naturally occurring gas, essential to life itself like carbon dioxide, is a pollutant?  Can the Clean Water Act be extended to temporary bodies of water and backyard ornamental ponds?  These are all, of course, difficult questions, sometimes with no easy answer, and at all times the subject of intense debate.  There remains no question, however, that there are things Congress cannot delegate for any reason, for example, Congress can’t create a new Congress of lifetime appointees and give them the power to write laws, and that the language used in its legislation is critically important, otherwise they wouldn’t constantly be fighting over it.  We should all expect laws to speak clearly and be applied just as clearly.

Justice Neil Gorsuch, among other conservative justices and legal scholars, have recently started to define precisely what these limits are, believing that Congress “must … act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule. ‘We expect Congress to speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’”  Justice Gorsuch has referred to this as the “major questions,” doctrine, that is the deference granted to the agencies would be more strictly limited on issues of “vast economic and political significance.” As Kevin O. Leske from the Barry University School of Law describes it, “Under the doctrine, a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance or where the interpretive question could effectuate an enormous and transformative expansion of the agency’s regulatory authority.”  In my opinion, this is not an unreasonable position, regardless of Congress’ current dysfunction.  Agencies will have broad latitude within their current sphere of influence, but be subject to a higher standard when extending that sphere or proposing regulations with a large impact on society. The alternative is agencies deciding the limits of their own power, continually extending it into new spheres that Congress never considered and never authorized.  There is, of course, a risk that Congress might be slower to act than would by ideal, but this risk is offset by agencies acting in ways that are unconstitutional or violate basic freedoms.  This path necessarily leads to tyranny by regulation, all implemented by a single branch of government without the protection of the separation of powers.

Incredibly, the progressive desire to advance their position that agencies have essentially unlimited power is so intense some are arguing that regulations by fiat with no vote in Congress is, in fact, democracy in action.  James Goodwin, writing for Washington Monthly, recently declared that “Regulatory Government is Democratic Government,” claiming that “Conservatives want to thwart federal rule making” and providing ways to “fight back.”  After bemoaning that the “conservative movement contrived to pack the U.S. Supreme Court with right-wing ideologues” using the actual democratic process and the legitimate exercise of power, Mr. Goodwin asserts that “the deconstruction of the regulatory system would also inflict serious harm on our system of democratic government” and “government by bureaucracy is government by the people,” “quite literally democracy in action.”  He reaches this conclusion because the regulatory process includes a “notice-and-comment” period that provides  “myriad opportunities it offers for public participation throughout the policy implementation process” in addition to “petitions to initiate rule makings, membership on advisory committees, and “citizen suits’ to enforce violations of rules.”  In his view, citizens can participate as “a community organizer or a citizen scientist, or simply by telling stories about our lived experiences.”

What Mr. Goodwin doesn’t tell you, however, is that none of these mechanisms are enforceable via a vote.  Theoretically, the agency is supposed to listen to you throughout the process, but ultimately the agency decides unless the court intervenes.  In other words, this is democracy where you get to speak your mind, but the establishment can simply choose not to listen.  You cannot vote them out, period, and the experts have the final say no matter what you think.  This is, of course, a rather radical rephrasing of democracy, one where the government deigns to let you speak, but is under no obligation to listen and you have no means by which to force them to listen.  Essentially, Mr. Goodwin has rewritten the preamble to the Constitution, from “We the People of the United States” to “We the Government of the United States.”  It is also in diametric opposition to the Tenth Amendment, which declares “the Federal Government only has those powers delegated in the Constitution. If it isn’t listed, it belongs to the states or to the people.”  Mr. Goodwin and others are now openly claiming all power resides with federal agencies, and your power is limited to voicing your opinion.  This is the movement that claims to care deeply about democratic norms and assaults on democracy, while they assault every norm there is and redefine democracy at a whim, outright proposing technocratic authoritarianism and calling it democracy.

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