Law & Liberty: Infantilizing Congress

Is Congress nowadays too broken to enact significant legislation? Some critics of the Supreme Court’s recent decision in West Virginia v. EPA, a challenge to the EPA’s Clean Power Plan, say so. Labor lawyer and author Thomas Geoghegan laments that a “gridlocked Congress has never been able to dig into the details of environmental regulation” and (echoing a 1930s Barron’s editorial about the debates over the New Deal ) called for a “mild species of dictatorship” to address climate change.

While Harvard Law professor Richard Lazarus, also writing in the Post, stopped short of calling for dictatorship, he also bemoaned “the obvious reality that the current Congress is incapable” of enacting major legislation. Attorney David French similarly called Congress “the most dysfunctional” branch of government in The Atlantic. However, he conceded that “it is not the role of the judicial branch to enlarge the power of the presidency merely because Congress has lapsed into partisan impotence.”

To summarize West Virginia v. EPA’s factual background: instead of requiring specific steps or equipment to reduce emissions, as the EPA had in the past, the Clean Power Plan was a system-wide regulation that would have required a particular mix of electric generation from different energy inputs. It would likely have led to wholesale closures of existing generating plants that use coal. The legal question at the heart of the dispute was: did this new plan invoke major questions of economic and political significance, such that Congress would be required to speak clearly in delegating such power to the agency?

Under the major questions doctrine, such clear statements are necessary to conclude that Congress intended to delegate its broad authority to restructure (rather than merely regulate) a fundamental sector of the economy. While there are constitutional limits on Congress’s delegation of power to executive branch agencies, the only matter in West Virginia v. EPA was whether Congress delegated this particular authority to EPA.

Because the EPA purported to discover a previously unknown power transforming its regulatory authority in the long-extant Clean Air Act, the Court held the Clean Power Plan unlawful. Even Justice Kagan’s dissent, while objecting to the majority’s application of major questions doctrine to this particular statute, acknowledges that the doctrine rightly applies in some situations.

So what is the problem? One common criticism is that Congress is too broken to come up with legislation that is adequately responsive to our nation’s fundamental problems. Professor Lazarus alleges, “Congress has been broken for more than 30 years in its essential lawmaking function.”

Geoghegan specifically singled out Senator Joe Manchin (D-WV), one of the two key swing-vote senators in the current Senate, for choosing not to push climate change legislation in this particular legislative session—although that was before Senator Manchin agreed to a recent deal that the White House and fellow Democratic senators are lauding as significant. Many environmental activists will remain unsatisfied with the recent legislation, including their concern over a reported side deal in which Congress will consider streamlining certain energy development permits. But whatever this deal’s fate or merits, arguments about the general competence of Congress to respond to complex social problems will persist.

Yet there are a variety of explanations for Congress’s failure to enact all the legislation that these advocates desire and to kill all the legislation they oppose. One is simply that a significant portion of the electorate has preferences that differ from them. To return to climate change, Manchin represents a poor state where the coal and natural gas industry is prominent. Many of the people he represents understandably dislike legislation that they see threatening their jobs or local economic development. One can argue in response that even West Virginians should nonetheless value environmental preservation more, but difference of opinion within the electorate is a feature of democracy rather than proof it is broken.

When a cause is popular enough, Congress has been willing and able to move rapidly in response to a Supreme Court opinion. For example, the recent Respect for Marriage bill received a vote in the House less than one month after the Court issued Dobbs v. Mississippi, in which Justice Clarence Thomas wrote a solo concurrence suggesting that he might also reconsider other precedents, including the one recognizing gay marriage. If the Respect for Marriage bill is not voted on in the Senate soon, it’s more likely because the Democratic Senate leadership would rather keep the issue alive before the mid-term election than allow a show of bipartisan support for gay marriage. But if gay marriage was ever seriously threatened again in the courts, there is little doubt Congress would act.

Another problem with congressional abdication of responsibility is more structural: zealous agency action undermines the basic legislative process. If an agency can solve a problem through executive action, why should Congress pass legislation that appears to be redundant?

For example, when I started my career at the United States Commission for Civil Rights in 2009, the Employment Non-Discrimination Act (“ENDA”) was one of Congress’s prominent and hotly debated civil rights bills. ENDA went through several iterations that varied modestly, but all extended the federal anti-discrimination laws to prohibit sexual orientation discrimination, and some later versions also prohibited gender identity discrimination. But legislative interest in ENDA faded when several Obama administration agencies announced new interpretations of existing civil rights statutes to cover these forms of discrimination.

When the executive supplants the legislative branch, the executive is more likely to take an absolutist, all-or-nothing approach to a complex problem than a multimember, bipartisan Congress. Getting to a majority often requires legislators to come up with a compromise between different parties or different factions within the same party.

But the executive branch can often avoid these kinds of compromises. In the ENDA context, for example, basic protections for LGBT persons from discrimination in hiring, firing, or promotions are more popular with the general public than rules that require employers to let transgender employees use their preferred bathroom or changing area. Some versions of ENDA, therefore, prohibited the first but explicitly left the second to employer discretion. When the EEOC acted unilaterally in this area, it abandoned any such compromise and required employers to treat employees as members of their preferred gender in all situations.

Another reason for Congress’s failure to act is its frequent desire to fob off its responsibility. If the courts allow Congress to give an agency broad authority to regulate “in the public interest,” it can punt on the hard questions. Congress can congratulate itself for taking on tough problems while deflecting the burden of crafting rules of conduct in laws that balance the different interests of executive branch agencies.

Under the Constitution’s exclusive assignment of legislative power to Congress, the Supreme Court must police this dodging of legislative responsibility. The major question doctrine is one important way it does so, and this doctrine simply requires Congress to be clear about the regulatory power it is delegating.

Other West Virginia v. EPA critics ground their objections in Congress’s lack of technical expertise compared to agency officials. In the environmental arena, they claim, specialist EPA employees often better understand the finer points of how pollution is created and how to control it than generalist members of Congress.

But EPA employees are not necessarily experts on the other interests and values affected by these rules. As the EPA admitted, it lacks expertise in projecting system-wide trends in areas such as electricity transmission, distribution, and storage, which would be crucial to enforcing the Clean Power Plan. Speaking more broadly, the EPA does not necessarily have good insight into costs to regulated industries, how costs get passed on to consumers, or how the average person weighs the value of environmental conservation against the burden of higher costs for everyday goods. Generalist members of Congress will often be better equipped to weigh those conflicting interests than agency officials.

Agency officials also have their own biases. Many EPA employees choose their line of work because they care passionately about preserving the environment. While that sense of mission may be admirable, EPA employees tend to care more about environmental preservation than the average American and will make tradeoffs differently than if these decisions were made democratically.

Less nobly, many government officials have a natural tendency to favor interpretations of statutes that expand their power. An entire branch of scholarly inquiry known as public choice theory confirms this common sense insight, showing that executive branch officials often tend to do what is good for executive branch officials as a class rather than what is good for the general public.

For many of the reasons that Lazarus, Geoghegan, and French suggest, Congress is far from a perfect institution. But it can correct agencies’ biases and, because its members are elected, it is more directly accountable to the voters than career bureaucrats with civil service jobs. West Virginia v. EPA upholds the constitutional principle that Congress cannot continue to duck its fundamental legislative responsibilities, which is the first step in Congress reclaiming its rightful role in our constitutional system of limited and enumerated powers.

This op-ed was originally published at Law & Liberty on September 5, 2022.