By Sam Pence, President
In Article 1 of the U.S. Constitution, the nation’s founders laid out clear directives for the way in which laws would be formed, policy expounded, and public administrative activities carried out, writing that “All legislative powers” would be “vested in a Congress.” This directive sets clear boundaries between those who would make laws — the elected members of Congress — and those who would see to the faithful execution of those laws and policy prescriptions. In short, it established clear guidelines for the American rule of law — guidelines that have been blurred or outright ignored in our present era.
In 1946, Congress passed the U.S. Administrative Procedure Act (APA) to impose much-needed regulations on the federal government’s agencies. Since then, however, several trends have seemed to run contrary to the spirit, if not the letter, of many of the protections sought by the APA, thereby violating the aforementioned constitutional requirements applying to administrative procedure. Let’s take a closer look at two of these trends: judicial deference to administrative agencies and federal executive overreach.
The Birth of Judicial Deference
In 1984, the U.S. Supreme Court issued a landmark ruling in the case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., granting unprecedented leeway to administrative agencies in the interpretation and execution of their congressional mandates. At issue in the case was the question of whether the term “stationary source” appearing in a 1977 Clean Air Act Amendments applied only to whole industrial plants owned by companies like Chevron, or whether new Clean Air Act regulations required Chevron to modify each individual unit within their industrial plants. In a unanimous decision, the Court ruled that companies like Chevron could proceed with the interpretation most economically advantageous to them.
The judicial principle that has grown out of this decision, known as the “Chevron doctrine” or “Chevron deference,” stands today as one of the most important and oft-cited cases in the area of U.S. administrative law. In short, the Chevron doctrine allows administrative agencies (in this case, the EPA) to freely interpret language appearing in their original congressional mandate, as long as (1) a court would recognize that interpretation as reasonable and (2) Congress has not already offered a clearer definition of ambiguous terms.
The implications of this decision are profound. Since the free interpretation of statutes by non-legislative personnel amounts to the development of new legislation by an entity other than Congress, such a move distorts the boundaries of legislative authority defined in Article 1 of the U.S. Constitution. But far from curtailing or overturning these privileges, the Supreme Court has only expanded upon them, most recently in the 2013 decision concerning City of Arlington, Texas v. Federal Communications Commission (FCC). In this case, a 6-3 majority of justices invoked the Chevron doctrine to argue that the FCC had authority not only to interpret the language specific to their jurisdiction but also to carry out decisions pursuant to that interpretation. The Court’s decision effectively cemented the extra-legislative authority of administrative agencies on a wide range of cases, normalizing the practice of lawmaking by non-lawmakers.
Contractarianism vs. Instrumentalism
The example of the Chevron doctrine — and the later case of City of Arlington, Texas v. FCC — highlights a longstanding philosophical divide in the sphere of public administration. On one side of this divide lie those in favor of constitutional contractarianism, which elevates the constitutional rights of Americans over administrative inconvenience in the execution of laws. On the other side of the divide are those who prioritize instrumentalism, an approach to public administration that prizes efficiency in the form of cost-effectiveness, timely solutions, and other principles that may impede constitutional rights. It seems likely that, in the two cases cited above, the nation’s highest court sought to move towards a more efficient, instrumentalist approach to public administration by deferring lawmaking authority to administrative agencies rather than requiring a contractarian solution. Whatever the Court’s intention, however, it has constructed a formidable obstacle to the reharmonization that some scholars would like to see taking place between public administration and constitutionality. But it is not the only branch of American government doing so.
Executive Overreach: From the Extraordinary to the Everyday
A second and potentially graver threat to this reharmonization project is the relatively recent phenomenon of American executive overreach. Unlike nearly every society preceding it, the U.S. was founded on the belief in a dramatically limited executive branch, which was granted no lawmaking powers but charged only with overseeing the smooth and orderly execution of the laws passed by Congress. Nonetheless, the powers assumed by the modern American president have expanded far beyond his constitutional mandate, while the power of the elected legislature has shrunk.
Perhaps the most easily identifiable example of hyper-presidentialism today is the executive order. Used sparingly until the 20th century, the executive order has since become a kind of bludgeon allowing sitting presidents to shape American law and administration with the stroke of a pen. In the modern era, it is not uncommon for a president to issue hundreds of executive orders during their tenure, many of which are explicitly intended to bypass the often slow legislative processes that Congress must follow. However, in opting for this more instrumentalist approach to legislation, the president violates Article II of the U.S. Constitution, which denies him powers of executive order. The president also compromises the durability of American law since executive orders can notoriously be revoked at any time, either by the issuing president or (more often) his or her successor. By contrast, congressional legislation is subject to thorough deliberation by a diverse body of elected officials, all of whom have been afforded explicit lawmaking powers by the country’s founding document.
One also sees evidence of executive overreach in the growing practice of nonenforcement. Much like the executive order, nonenforcement does not appear in the Constitution, although some scholars point to language describing the president’s responsibility to “faithfully execute” laws to argue that refusal to enforce certain immoral or otherwise problematic laws is within his or her rights. One of the most frequent practitioners of nonenforcement was president Barack Obama, whose directives led to the nonenforcement of immigration and residency laws during his tenure. Even more recently, former President Donald Trump issued a directive to federal agencies to ignore environmental pollution violations, which his administration argued was necessary to reverse the economic downturn triggered by the COVID-19 pandemic.
The practice of nonenforcement, in addition to being extra-constitutional, runs contrary to one of the most basic tenets of America’s founding: the repudiation of tyranny. While nonenforcement has yet to give way to tyranny, this growing practice within the executive branch should be regarded with deep suspicion. A commander-in-chief who adds to the ledger of American legislation is one thing, but one who directly ignores the expressed will of the governed as established through legitimate legislative means is another one entirely. Such a leader, if operating with ill intentions in an enabling environment, would have powers far exceeding anything envisioned by America’s founders and potentially threatening America’s survival. As such, this phenomenon of nonenforcement should be considered among the many practices disrupting the progress of constitutional public administration.
A Call for Constitutional Fidelity
It is understandable, in an age of perennial gridlock between America’s legislative bodies, that leaders in both government and public administration would wish to minimize the time and energy required to execute their agendas. But it is vital, as it has always been to the success of the American project, that these leaders demonstrate a primary allegiance to the rights of those they serve as enshrined in the Constitution rather than administrative expediency. In largely failing to do so over the previous decades (while nevertheless maintaining a certain reverence for existing law and refraining from grossly irresponsible or tyrannical activity), they have created a breach between their public service and our constitution.
The need for constitutional fidelity in public administration is even more acute in an era of unprecedented political rivalry. Indeed, one might argue that the instrumentalist approach has produced even more of the gridlock it once sought to circumvent and that, in no longer needing to work together, we have grown further apart. While it may seem harder than ever to come to the agreements required to hammer out effective legislation — and more enticing than ever to skirt around these frustrating processes — it is only in doing so that the U.S. will remain a government truly “by the people” and “for the people.”
The worrying trends of judicial deference to administrative agencies, administrative lawmaking, and executive overreach in its many forms threaten to widen the already yawning chasm between U.S. citizens and those who shape their laws and societies. As a result, there has rarely been a more opportune moment for America to recommit herself to the rule of law and a culture of fully inclusive — if inconvenient — contractarianism.