"Because of Humphrey’s Executor, the President to this day lacks day-to-day control over large swaths of regulatory policy and enforcement in the Executive Branch—from communications regulation (the FCC) to labor regulation (the NLRB) to securities regulation (the SEC) to nuclear power regulation (the Nuclear Regulatory Commission). Those and many other independent agencies have huge policymaking and enforcement authority and greatly affect the lives and liberties of the American people. Yet those independent agencies are democratically unaccountable—neither elected by the people nor supervised in their day-to-day activities by the elected President"
Scalia Blasts `Unelected Agency Officials', But At Least They Work For The President
Justice Antonin Scalia delivered one of his signature dissents in yesterday’s EPA vs. EPE Homer City Generation, where the Supreme Court upheld the power of the Environmental Protection Agency to dictate state air pollution standards. Scalia starts with this trumpet blast:
Large swaths of the federal government lie beyond the reach of any elected officials, in so-called “independent agencies” that occupy a dubious position under the Constitution and are drawing increasingly skeptical looks from some conservative legal scholars.
The Wall Street Journal points this out indirectly on its editorial page this morning, saying the decision is “a reminder that in this era of the ever-growing administrative state, control of the executive is more important than ever.” The founders made the presidency a powerful executive position subject to national election every four years to ensure that voters could effect a change if they were unhappy with how the laws were being enforced.
In Homer City, the majority, including Chief Justice John Roberts, held that the EPA acted within its authority when it included a cost-benefit analysis in the regulatory scheme it set up under the Good Neighbor Provision of the Clean Air Act. That provision requires states that send airborne pollution across their borders to install controls on power plants and other emitters if that pollution can drive a downwind state out of compliance with EPA limits. The U.S. Court of Appeals in Washington D.C. struck down the law, saying it unfairly burdened upwind states and exceeded the EPA’s authority.
For the majority, this was a simple exercise in statutory interpretation. The Clean Air Act and subsequent legislation contain enough holes, Justice Ruth Bader Ginsberg wrote, to allow the EPA to determine a workable plan for cross-border emissions that included a reasonable consideration of costs.
Scalia said that was nonsense. In response to Ginsburg’s comment that it was difficult for the government to apportion responsibility among several states, he wrote: “Wow, that’s a hard one—almost the equivalent of asking who is buried in Grant’s Tomb.”
Ginsberg also seized upon the “negative implication” of missing language, found in other environmental statutes, that would have protected states against having onerous requirements handed down to them without prior notice. “Negative implication is the tiniest mousehole in which the majority discovrs the elephant of federal control,” Scalia responded.
Such fulminations obscure the fact that if voters are unhappy with how President Obama is conducting environmental policy, they have ample opportunity to send him a message in the midterm elections, and they can elect a pro-coal, anti-EPA president in 2016.
More disturbing to some are the independent agencies, like the Securities and Exchange Commision, the Consumer Financial Protection Agency, and the Nuclear Regulatory Commission, that operate effectively without any executive-branch control.
Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals wrote at length about this dilemma in a 2011 decision involving the Yucca Mountain nuclear waste depository. In a decision rejecting a lawsuit challenging the EPA’s refusal to proceed with Yucca Mountain (it happens to sit in Sen. Harry Reid’s territory), Kavanaugh expressed thinly disguised doubts about the constitutionality of an agency, like the NRC, that can make decisions with the effect of law without any accountability to the voters.
In this case the EPA had been ordered by Congress to prepare an application for the Yucca Mountain facility, and even awarded $11 million in preliminary funding, yet any decision was subject to being overruled by the independent NRC.
Some choice quotes from that 5-4 decision, which drew strong dissent from Justice Stephen Breyer.
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.Scalia’s complaint is that the EPA, with the Supreme Court’s blessing, has expanded its authority beyond the text of the Clean Air Act. He may be right (despite this embarrassing apparent error in his legal scholarship), but at least the EPA operates under the authority of an elected official, namely President Obama.
The Wall Street Journal points this out indirectly on its editorial page this morning, saying the decision is “a reminder that in this era of the ever-growing administrative state, control of the executive is more important than ever.” The founders made the presidency a powerful executive position subject to national election every four years to ensure that voters could effect a change if they were unhappy with how the laws were being enforced.
In Homer City, the majority, including Chief Justice John Roberts, held that the EPA acted within its authority when it included a cost-benefit analysis in the regulatory scheme it set up under the Good Neighbor Provision of the Clean Air Act. That provision requires states that send airborne pollution across their borders to install controls on power plants and other emitters if that pollution can drive a downwind state out of compliance with EPA limits. The U.S. Court of Appeals in Washington D.C. struck down the law, saying it unfairly burdened upwind states and exceeded the EPA’s authority.
For the majority, this was a simple exercise in statutory interpretation. The Clean Air Act and subsequent legislation contain enough holes, Justice Ruth Bader Ginsberg wrote, to allow the EPA to determine a workable plan for cross-border emissions that included a reasonable consideration of costs.
Scalia said that was nonsense. In response to Ginsburg’s comment that it was difficult for the government to apportion responsibility among several states, he wrote: “Wow, that’s a hard one—almost the equivalent of asking who is buried in Grant’s Tomb.”
Such fulminations obscure the fact that if voters are unhappy with how President Obama is conducting environmental policy, they have ample opportunity to send him a message in the midterm elections, and they can elect a pro-coal, anti-EPA president in 2016.
More disturbing to some are the independent agencies, like the Securities and Exchange Commision, the Consumer Financial Protection Agency, and the Nuclear Regulatory Commission, that operate effectively without any executive-branch control.
Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals wrote at length about this dilemma in a 2011 decision involving the Yucca Mountain nuclear waste depository. In a decision rejecting a lawsuit challenging the EPA’s refusal to proceed with Yucca Mountain (it happens to sit in Sen. Harry Reid’s territory), Kavanaugh expressed thinly disguised doubts about the constitutionality of an agency, like the NRC, that can make decisions with the effect of law without any accountability to the voters.
In this case the EPA had been ordered by Congress to prepare an application for the Yucca Mountain facility, and even awarded $11 million in preliminary funding, yet any decision was subject to being overruled by the independent NRC.
Who in the Executive Branch is ultimately responsible and accountable for deciding whether to terminate the project for storing nuclear waste at Yucca Mountain? Under the text of the Constitution, the answer seems simple: the President of the United States. But it is not so simple. This case illustrates the point.Kavanaugh goes on to explain — as if writing for a larger audience than judges and lawyers — how this absurd situation was created by the Supreme Court’s 1935 decision Humphrey’s Executor vs. U.S. In that case the court, over the strenuous objections of President Franklin D. Roosevelt, held that Roosevelt couldn’t fire Federal Trade Commission Chairman William Humphrey over differences on trade and antitrust policy. The decision — part of a series of anti-Roosevelt rulings, most of which have gone into the dustbin of history — created two species of executive agencies, those under presidential control and independent.
Because of Humphrey’s Executor, the President to this day lacks day-to-day control over large swaths of regulatory policy and enforcement in the Executive Branch—from communications regulation (the FCC) to labor regulation (the NLRB) to securities regulation (the SEC) to nuclear power regulation (the Nuclear Regulatory Commission). Those and many other independent agencies have huge policymaking and enforcement authority and greatly affect the lives and liberties of the American people. Yet those independent agencies are democratically unaccountable—neither elected by the people nor supervised in their day-to-day activities by the elected President.Kavanaugh was careful not to say he was suggesting Humphrey’s Executor should be overturned. But he quoted extensively from the 2010 decision Free Enterprise Fund v. Public Co. Accounting Oversight Board, which comes close. That case eliminated a tw0-tiered system of independent agencies where one agency oversaw another.
Some choice quotes from that 5-4 decision, which drew strong dissent from Justice Stephen Breyer.
The people do not vote for the Officers of the United States. They instead look to the President to guide the assistants or deputies subject to his superintendence. Without a clear and effective chain of command, the public cannot determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.and:
One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.Perhaps Scalia doth protest too much. At least there’s a referendum coming on the Obama administration’s pollution policies.
