The Washington PostDemocracy Dies in Darkness

When the court shrinks the administrative state, Congress loses power

In an emergency like climate change, it’s the alphabet agencies that can act effectively. Without them, power is left to the president.

Because of the opposition of Sen. Joe Manchin III (D-W.Va.) and Republicans, Congress won’t pass a comprehensive bill to address climate change in the near future. Such gridlock is why Congress empowered federal agencies to make certain decisions and rules. (Bill O'Leary/The Washington Post)

It’s been a good month for West Virginia in its fight to keep the planet burning. The Supreme Court, in West Virginia v. Environmental Protection Agency, blocked the EPA from doing more to push the country off coal. The court held that it was up to Congress to decide major policy questions about burning fossil fuels and clarify what vaguely written environmental laws like the Clean Air Act meant. A couple weeks later, West Virginia’s senior senator, Joe Manchin, a Democrat, shut down the Biden administration plan to wean Americans off coal, making clear that on his watch, with the slimmest of Democratic majorities, Congress would do nothing.

The court’s conservative majority is out to shrink the administrative state in favor of decision-making by Congress, but it’s a Congress incapable of deciding much at all. Or at least the Senate is incapable — and the House is ineffective without the Senate. The inaction may have been survivable in the past, when Congress was merely too dysfunctional to deal adequately with health care, labor law or many other issues. In the case of Obamacare, it was astonishing that it came up with a law at all; exhausted from that effort, Congress under President Barack Obama did little else. Under President Biden, the “soft infrastructure” bill collapsed — Congress couldn’t handle its provisions for things like child and elder care, clean drinking water, universal broadband, and community colleges. This is the sort of congressional inaction that the United States may be able to withstand — day-to-day life will go on, even if the country becomes more unequal and perhaps eventually falls apart. Climate change is another matter. Inaction here has graver consequences. And by empowering a dysfunctional Congress to do nothing about climate change, the court is, no doubt unwittingly, endangering Congress as an institution. If there is a paralyzed Congress, unable to delegate to an administrative state, it may lead one day to an emergency where Congress is set aside — Biden is already having to resort to executive order to try to stop fossil fuel burning.

The Supreme Court justices must follow the news. They must know as well as anyone that a gridlocked Congress has never been able to dig into the details of environmental regulation. In the 1970s, the Department of Energy as a matter of policy was pushing plants off oil and onto gas, and no one expected Congress do much more than vaguely bless the doing-of-something to save oil. This is true for any parliamentary body in a republic — it is incapable of turning on a dime to educate itself and take emergency actions on technical or scientific questions. Even the Congress of 1914 knew that much; that’s why it created the Federal Trade Commission, to define and go after specific abuses that this present court might say only Congress can define.

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The problem is not the House, however gerrymandered it may be. Consider all the major laws the House has passed under Speaker Nancy Pelosi (D-Calif.), only to see them die in the Senate. But in the real world, not even the House has the time or capacity to do the deep dive into administrative rulemaking that the court seems to think, in its fantasy world, that a legislative body amid a climate emergency can do. It takes a decade for Congress to do that kind of work — and by then far too many will be in despair or dead.

The left, of course, is not giving the court the benefit of the doubt; progressives are certain that its antipathy to the administrative state is not really about empowering Congress but rather about keeping American businesses and the wealthy from being regulated at all.

Regardless, even if in good faith, the court’s hostility to the administrative state is imperiling the existence of Congress.

Delegation of legislative power is the very thing that saves it — and has saved it, ever since the administrative state as we know it came into existence in the 1930s. In his 2013 book, “Fear Itself: The New Deal and the Origins of Our Time,” the historian Ira Katznelson recounts how leaders on both left and right openly debated the question of whether the Depression, an emergency, required authoritarian rule: Would the president, Franklin Roosevelt, and his administration need to dispense with Congress? In that emergency, there was no time to amend the Constitution; it would just be set aside. “If this country ever needed a Mussolini, it needs one now,” a Republican senator from Pennsylvania, David Reed, declared in 1932, as Katznelson tells it. “Leave it to Congress,” Reed said, “we will fiddle around here all summer trying to satisfy every lobbyist, and we will get nowhere.” Even the business weekly Barron’s, Katznelson writes, called for a “mild species of dictatorship.”

The happy outcome, of course, is that Roosevelt did not dispense with Congress, or the rule of law, or a republican form of government. At first, however, the Roosevelt administration came close to doing so. The National Industrial Recovery Act, also known as the Blue Eagle Act, was the centerpiece of what is known as the First New Deal, which ran from 1933 to 1935. The act gave the president unchecked power to set prices, wages and hours, industry by industry, in any way he thought desirable. The president became, under the act, the chief executive of every firm, association or corporate entity of every significant industry in the country, even if in the first instance these codes were developed by private bodies. In the Blue Eagle Act, a frightened Congress had dispensed with itself and put Roosevelt in charge of the economy, much like the regimes in the new authoritarian countries had done.

In 1935, a unanimous Supreme Court struck down the Blue Eagle Act in Schechter Poultry v. United States. This was in part because it gave the president unlimited power over intrastate and interstate commerce but mostly because it created, potentially, a breathtaking presidential dictatorship. This was no mere delegation case like West Virginia v. EPA. The Blue Eagle Act was an attempt to dispense with a legislature; Italy and Germany were doing that. Even liberals like Louis Brandeis and Benjamin Cardozo joined the court’s conservative majority. After the Schechter Poultry decision, Brandeis, as recounted by Harry Hopkins, Roosevelt’s federal relief administrator and later his commerce secretary, said, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”

In his concurring opinion, however, Cardozo suggested that delegating power on a large scale was all right if it was confined to specific objects: For instance, the Federal Trade Commission had the power to define unfair trade practices, he said.

What then happened in the Second New Deal was a turn to this narrower delegation of power. The National Labor Relations Board, for example, was directed to take on specific problems. What Katznelson calls “a host of alphabet agencies and programs — AAA, CWA, PWA, REA, TVA, WPA, NRA, SEC, NLRB, FLSA, FHA, FSA and more” — followed. Here was the origin of the administrative state by which the country got around an especially dysfunctional legislative branch.

Justices keen to gut that Second New Deal version of the administrative state should know this: It was not invented to displace Congress but to save it — particularly the Senate.

The line between the proper scope of the administrative state and that of Congress has been vague, messy and in many cases just ignored, but for close to a century it has worked. Edmund Burke would wince at the court’s radical ideological attempt to overthrow it. It is often said that Congress enacts badly drafted laws, but in a dysfunctional legislative branch, part of a dysfunctional Constitution, there is no alternative to unclear and badly drafted laws if laws are to pass at all. The legislative drafting bureaus are full of excellent lawyers who are perfectly capable of writing clear laws, but clarity, for political reasons, is not often Congress’s intent. The Clean Air Act is a vaguely drafted law, but insisting that Congress do a better job ignores why. Strong, clean, precise decisions are beyond the institutional capacity of Congress, so often paralyzed by filibuster and gerrymandering, and usually incapable of acting in an emergency. For the court to chafe at a badly drafted law is to ignore the intent of Congress to have it badly drafted.

As recent days have shown, the administrative state is necessary to save us from Manchin — but it is also a way of saving Manchin himself. If the planet continues to burn, while this virus or a new one continues to ravage it, we will need a far more flexible Constitution with an administrative state that may need to be larger, not smaller, than the one that the court is trying to shrink.

Alarmed by climate change, even a champion of Congress like Biden is beginning to sour on the place. In a speech Wednesday, he called the warming climate a “clear and present danger” and vowed to take action. He has so far stopped short of formally declaring a climate emergency, but thanks to an active court and an inactive Congress, we may have no alternative but “a mild species of dictatorship.”

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