If The New York Times Is Worried…

… I’m happy.

In particular, there’s an opinion piece in today’s Times by one Nicholas Bagley, who is identified as a professor of law at the University of Michigan. The professor writes:

In Gundy v. United States, which concerned the constitutionality of a law requiring the registration of sex offenders, four of the more conservative justices endorsed a controversial legal theory according to which Congress lacks the power to delegate broad powers to agencies like the Food and Drug Administration and the Department of Heath and Human Services.

For now, the four more-liberal justices have brushed back the challenge, ruling 5 to 3, with Justice Samuel Alito, that Congress can give to the executive branch the authority to implement that specific law. But a close reading of the decisions in the case — and the fact that Justice Brett Kavanaugh was recused — suggests that the liberals may not have the votes to turn back the conservative assault on Congress’s powers.

Federal agencies have been vested with expansive authority since the dawn of the republic, but the administrative state as we know it really took off in the 20th century. The rise of agencies like the Office of Price Administration, the Social Security Administration and the Environmental Protection Agency was essential to the prosecution of two world wars, the creation of the post-New Deal welfare state and the regulation of novel risks such as industrial pollution.

Slippery stuff, that argument. The “conservative assault” isn’t on Congress’s powers, but on Congress’s unconstitutional delegation of its powers, not to mention the judiciary’s powers, to the executive branch. Furthe, Bagley implicitly assumes that OPA, SSA, EPA, and a long list of unnamed co-conspirators are both constitutional in themselves, and that they actually perform beneficial functions. There is a a lot of evidence that most of the agencies of the executive branch have made things worse for Americans. (See, for just one example, “Economic Growth since World War II“.)

Bagley continues:

Since 1935, the Supreme Court has approved laws telling agencies to regulate “in the public interest” and to set pollution standards “requisite to protect the public health.” Not once in the 84 years since has the Supreme Court invalidated a law because it offends the so-called nondelegation doctrine.

And for good reason. To run a functional, modern government, Congress has no choice but to delegate authority and discretion to federal agencies. Doing so allows Congress to make use of agencies’ resources and scientific expertise, to enable a nimble response to emerging problems and to insulate technocratic decisions from raw politics.

In other words, it’s okay with Bagley (and a host of “liberals”) if unelected bureaucrats tell people — in minute detail — how to run their businesses and lives, and to act as judge and jury of the people whose actions do not comport with bureaucratic wisdom. Oh, and about those “nimble” bureaucracies — have you ever encountered one?

Bagley nevertheless says something that makes me happy:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

Near the end, Bagley asserts this:

The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.

If follows, by Bagley’s “logic”, that Congress could write a law which delegates all of its power — and all of the judicial branch’s power — to executive-branch agencies. Why not just resurrect the Third Reich or Stalin’s USSR and be done with it?

 

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