In the September 21, 2020 Washington Post’s article, An extra Trump Supreme Court justice may help cement his environmental rollbacks, Jody Freeman, director of Harvard Law School’s environmental and energy law program, is quoted as saying:
“A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection.”
The article discusses the EPA’s “Clean Power Plan,” which has been challenged by the Trump Administration as being adopted by the EPA in excess of its authority. The Post’s concern is that if a conservative Supreme Court agrees with Trump, “it could hamstring a future president from using existing law to regulate climate-warming pollution.”
Conservative Justice Neil Gorsuch has been quite vocal that Congress’s delegation of its legislative authority to the executive branch, which runs our nation’s administrative agencies, has exceeded its constitutional authority. He also has been critical of the Supreme Court’s historic, sweeping deference to executive branch administrative agencies making, interpreting and enforcing their own rules – rules that have the force of law. Other conservative justices look as if they agree with Gorsuch.
The liberal justices see any rollback as stifling the executive branch and its administrative agencies from being responsive to issues, like climate change, that our complex society requires flexibility and some speed in solving. They see these sorts of problems best handled by the executive branch of government. In fact, Justice Kagan, the Court’s remaining liberal female member, has written that we live in the Era of Presidential Administration, and the Supreme Court should facilitate that sort of necessary management.
Before I and the rest of us who favor caring for our environment and minimizing our damage from climate change side with Kagan, there are a few constitutional and pragmatic thoughts worth thinking through.
The Constitution our Founders adopted in 1789 provides that the exclusive right to pass legislation belongs to our first political branch of government, the legislative branch. Nothing in the Constitution says that Congress has the right to delegate law-making to our second political branch of government, our executive branch; and it doesn’t give the executive branch authority to set up and operate what has become known as our “Fourth Branch” of government, our administrative agencies. But that’s what we have done. The authority is not in the words of the Constitution, but in its implied meanings.
Today, as many as 30 times as many laws (in the form of agency rules) are passed in a year by the Fourth Branch than are passed by Congress. In fact, not too long ago, I did a blog on this problem, Too Damn Many Regulations? I pointed out that in 2016, while Congress passed 2,966 pages of laws, the administrative agencies pushed out 97,110 pages of regulations. Thus, Gorsuch has a point about Congress’s delegation. The give and take between elected Congressmen with differing views, which is to take place in debates about proposed legislation, is totally missing from the rule-making process.
However, there is another, more serious threat to our Democracy than reams of paper filled with regulations. It’s a combination of the influence of lobbies and what I call legalized corruption. First there is a very cozy relationship between the regulating agencies and the companies they regulate. Money in the form of political contributions does that sort of thing. Lobbies not only have a strong influence on the rules being drafted, they frequently draft the rules.
Worse, there is the “swinging door” between the agencies and the companies being regulated. As we change administrations over time from liberal to conservative and back again, whomever is in charge appoints new political heads of the executive branch agencies, often from regulated businesses. For example, Trump appointed an ex-coal lobbyist to run the Environmental Protection Agency. All administrations do this sort of thing, but Trump, in less than eight years, has appointed more lobbyists and regulated company insiders to work in our agencies than Bush and Obama did in their combined 16 years of running our government. And what usually happens, is that after a short term running our agencies, the lobbyists and insiders return to their private businesses, knowing where pressures can be applied to get the best results for the companies they represent. We, the people, the intended beneficiaries of our Constitution, are in a distant last place. Yes, there are ethics rules that are supposed to minimize this sort of thing. But, believe me, they really don’t work.
Now, not all is lost. Last time I ran a check, Trump and his friends rolled back 102 regulations. However, the rollbacks are being challenged by concerned environmental and other organizations in the federal courts, now populated primarily by conservative judges. What has been Trump’s success ratio? About 12%. He’s lost about 88% of his challenges. You can check Trump’s rollbacks.
Thus, there are judges, liberal and conservative, that do understand that our Constitution is written to provide us with an independent judiciary in a country intended to by run by the rule of law, though our political branches prefer a country run by the rule of dollars.
These tough sorts of issues and subjects is why I wrote Democracy of Dollars, now in its final editing. We need to understand the issues and take intelligent, carefully considered stands. We can’t assume that everyone who thinks different from us is wrong.
On the issue of Congressional over-delegation, I do believe my liberal friends are wrong. We need to get back to Constitutional government, and Congress needs to quit over-delegating to the executive branch, which is too easily corrupted by money.