The Hill: We should prefer accountable government to rule by the administrative state

August 01, 2022 | By LUKE WAKE , DANIEL ORTNER

The Supreme Court ended its term with a highly consequential 6-3 decision in West Virginia v. EPA. The court repudiated the Environmental Protection Agency’s claim that Congress had delegated sweeping powers for the agency to pursue a regulatory agenda of its own creation that would force energy companies to adopt alternative energy sources. That should not have been a controversial decision. Since the founding of the American republic, the courts have always affirmed the foundational precept that Congress alone makes law. And Congress cannot give away its lawmaking powers to unelected bureaucrats without violating the Constitution.

Yet there is a competing vision of the Constitution, trumpeted by progressive-minded law professors and interest groups who bemoan the court’s adherence to the rule of law. Under this view, strict constitutionalism is intolerable because it may sometimes get in the way of the government crafting “optimal” regulatory regimes. For this reason, advocates of a strong administrative state see no issue with Congress delegating broad rulemaking powers to federal agencies — as long as that enables the government to carry out their preferred regulatory agenda.Yet, boiled to its core, this is nothing but a call for bureaucratic rule over the American people.

Justice Elena Kagan’s dissenting opinion in West Virginia likewise defends broad delegations. One might call it a “love letter” to the administrative state. In her view, we owe the blessings of modern America to the fact that Congress often delegates broad powers to federal agencies because it would not be practicable for Congress to decide everything. Kagan argues that the American worker is better off, that consumers are safer, and that the environment is cleaner because Congress gave “broad-ranging powers to administrative agencies, and those agencies then filled in — rule by rule by rule — Congress’s policy outlines.”

But there is a world of difference between allowing an agency to fill in “minor details” of a regulatory scheme of Congress’s creation and allowing an agency to create a regulatory regime from the bottom up.

In this case, the EPA claimed that Congress had delegated open-ended authority for the agency to devise any system of emissions regulation that the EPA administrator might deem “best.” That would amount to a wholesale delegation of Congress’s lawmaking powers in contravention of the structure of our Constitution. For advocates of an engorged administrative state, this was no concern. They would argue that open-ended delegations are desirable because the federal bureaucracy is stocked full of “experts” in whom we trust. Never mind the fact that Congress is capable of consulting experts when crafting legislation. We apparently should place our faith in unelected officials in the executive branch to govern us wisely.

But if you cherish individual liberty, you naturally have a different view of government and the value of the rule of law. You simply cannot accept a government dominated by the regulator’s chosen experts if you want to maintain a free society. Why? Because, as Justice Neil Gorsuch put it, a republic governed by the people is always “more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’”

So, we must always insist that our government should remain accountable to the people through our representatives in Congress. This accountability is what makes us a free people. We lose that accountability when Congress delegates broad powers to the executive branch. That is why the courts should avoid interpreting statutes as giving federal agencies open-ended powers. And if Congress tries to give an agency a blank check, we should expect the judiciary to enforce the Constitution by striking it down.

The stakes are high. If we allow Congress to set aside the Constitution’s strict separation of powers and give away vast lawmaking powers in the name of administrative expedience, we will end up with a government unrestrained by the rule of law. At that point, federal regulations will amount to orders from bureaucratic rulers on high. As Gorsuch put it, in such a regime, the “law” would represent “nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him.” That is not a utopia, as some would have us believe. To the contrary, it is a threat to our most basic liberties — our very right to a free society — and a dangerous step on the road to tyranny.

This op-ed was originally published at The Hill on August 1, 2022.