Wednesday, April 30, 2014

Does Congress Have an Accountability Problem?

     What would the founders of the United States think if they saw the broad authority of administrative agencies today?  Congress has delegated much regulatory power to administrative agencies to carry out certain functions for which Congress is neither expertly equipped to perform nor in possession of adequate resources for such functions.  The nondelegation doctrine, established in Whitman v American Trucking Associations, expounds on the principle that Congress cannot delegate its legislative power or authority to agencies but must provide agencies with an "intelligible principle" on which to base rules and regulations.

     The nondelegation doctrine can be examined to keep Congress accountable for their constitutional duty to legislate.  As Article I, Section I of the Constitution states, "All legislative Powers herein granted shall be vested in a Congress of the United States."  

     Adam White, a lawyer in Washington, DC, wrote recently that the Hobby Lobby case currently in front of the Supreme Court (examining if the Affordable Care Act's contraception mandate, which compels employers must provide contraception to their employees, violates the Religious Freedom Restoration Act if an employer objects to providing said contraception on religious grounds) may come down to the nondelegation doctrine.  White noted Justice Anthony Kennedy's remarks made during oral argument regarding Congress' constitutional legislative authority.  Kennedy asked, "Now, what—what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?  But when we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency, to determine that this corporation gets the exemption...?"  

     Typically, the courts have afforded agencies an inordinate amount of deference during legal challenges under the Chevron doctrine established in Chevron v. Natural Resources Defense Council.  As Mr. White stated, "Congress often writes statutes in very broad terms, leaving substantial room for willful agencies to make major policy decisions," which the courts have typically upheld.  However, White made note of the limits of such delegation that, "too much discretion to an agency would undermine the Framers’ basic vision."

     Just this week, the Supreme Court, by a vote of 6-2 (with Justice Alito abstaining), upheld the EPA's "Good Neighbor Provision" regulating cross-state pollution under the Chevron doctrine among other reasons.  The decision overturned a DC Circuit Court decision and according to Justice Ginsburg who wrote for the majority, "This Court routinely accords dispositive effect to an agency’s reasonable interpretation of ambiguous statutory language.  The Good Neighbor Provision delegates authority to EPA at least as certainly as the CAA [Clean Air Act] provisions involved in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc."

     In Justice Scalia's dissent of the case, he asserted, "Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress...Today, the majority approves that undemocratic revision of the Clean Air Act" and "It deserves no deference under Chevron."  Justice Scalia was concerned with the interpretation of the word "significant" as it pertained to the statute in question and how the EPA implemented their rule, in his opinion, contrary to the word "significant" located in the statutory text.  

     Justice Scalia is no stranger to the Chevron doctrine.  In fact, last term, he wrote the majority in City of Arlington v FCC and was even criticized by Chief Justice Roberts for siding with "big government."  Justice Scalia's apparent flip in this week's case seems to conflict with prior decisions of which he has been a part.

     Gonzales v Oregon is another important case to consider when examining Congressional delegation as Mr. White also pointed out.  The Supreme Court ruled that the attorney general, under the Controlled Substances Act, did not have the authority to prosecute physicians who, under a newly enacted Oregon law, practiced physician-assisted suicide through drugs that fell under the scope of the Controlled Substances Act because Congress enacted the law to apply to the illicit sale of drugs. The attorney general would be thrusting himself into the field of physician-assisted suicide, a field unintended by the law.  Justices Scalia and Thomas were the only two dissenters and in Justice Thomas's dissent, he critically opined, "While the scope of the CSA [Controlled Substances Act] and Attorney General's power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administrative agencies are merely the inevitable and inexorable consequence of this Court's Commerce Clause and separation of powers jurisprudence."  

     Congress has also delegated their war making power to the president through the Authorization to Use Military Force, which was passed three days after the attacks on September 11, 2001.  The Authorization or AUMF, is still used today to broadly justify military action taken by the president against terrorist groups.  While legislators complain about their powers continually being stripped by an "imperialist president," they should partly feel responsible.  Additionally, it is easy to criticize if responsibility and accountability are delegated away.  With the rapid development of a Russian intervention regarding the removal of Syria's chemical weapons, the first real Congressional debate regarding use of military force was nullified.  Additionally, Congress has also demurred on switching the drone program to the Pentagon (as opposed to the CIA) and has recently stripped a transparency provision out of legislation that would have required the president to report on those killed and injured in strikes, effectively continuing virtual blanket authorization to the president.  

     The issue of delegation is not new, yet many continue to grumble about the growing administrative state and the "pen and phone" strategy.  Congress is accountable for the statutory language and authorizations they write but as long as Congress continues to write vague statutes, administrative agencies will be afforded deference by the courts thus relieving Congress of immediate accountability.  As a result, Congress' authority is dwindling and the administrative state continues to grow.  

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