TUCKED IN THE MIDDLE of a speech delivered last week by Chief Judge J. Skelly Wright of the U.S. Court of Appeals was a heretical idea. He argued that federal judges should stop giving such unremittingly strict scrutiny to the actions of regulatory and administrative agencies and fall back instead on the old doctrine that condemns "excessive delegation of legislative power." That doctrine has lain dormant since the 1930s when it was used by the Supreme Court to scuttle part of Franklin Roosevelt's New Deal. Its revival, or perhaps even the threat of its revival, could force Congress to come to grips with some of the basic issues it has fallen into the habit of handing over to regulatory agencies.
It's not likely that many judges will seize the idea. The memories of the court-packing fight in the late 1930s and its aftermath are still too vivid for revival of a tool used by judges to block economic regulation of business. But the rest of his message -- that the federal courts ought to stop telling the regulartory agencies what to do -- is one that judges, lawyers and members of Congress should think about. The court over which he presides handles much of the judicial review of what those agencies do.
Among Judge Wright's targets are the proposals drifting around Congress to strip the existing presumption of legality from many agency decisions and to require full review of each such decision by the federal judges even deeper into the content of economic regulations, but also to create longer delays between the time Congress tells an agency to regulate an industry and the time that agency's regulations go into effect.
If Congress will resist the impulse to approve such measures and if the courts will follow Judge Wright's advice, the real sources of the regulatory mess will gradually be, if not eliminated, at least revealed. These are the frequent use by Congress of ambiguous language in telling agencies what it wants done -- that would have been called excessive delegation of power in another era -- and the inevitable desire of agencies to exercise their power to the limits of that ambiguous language.
The result would be to put the blame for excessive regulation where it belongs and to free the federal courts to do their fundamental job: protect the constitutional rights of individuals. Judge Wright quite correctly perceives that the courts are doing this job less well because they are waist deep in the regulartory Big Muddy.