I found myself asking the titular question earlier this week while testifying at a Joint Western Caucus hearing on Capitol Hill. During his principal comments, Senator Mike Lee, junior senator from Utah, suggested that one reason why EPA and other agencies have run amok is that Congress has granted them significant rulemaking power with little or no Congressional oversight. To “rein in” these regulatory excesses, the House of Representatives passed late last year the “Regulations from the Executive in Need of Scrutiny Act” (REINS). The Act would require Congressional approval for any regulation that would have an economic impact in excess of $100 million. Thus, the law would apply to many of the Executive Branch’s more controversial actions, such as the listing of the polar bear or the designation of critical habitat for the Coastal California gnatcatcher under the Endangered Species, or the designation of greenhouse gases as air pollutants under the Clean Air Act. The bill is now before the Senate. The Administration has already promised a veto, contending that the bill would transgress the separation of powers. Is that right?
It seems to me a little ironic for the Executive Branch to argue that the REINS Act would transgress its prerogatives, when the principal motivation for the Act is the view that administrative agencies are themselves violating the separation of powers by exercising de facto law-making power through the regulatory process. One distinction between the REINS Act and previous Congressional approval regimes, however, is that, under the REINS Act, the proposed rule can only go into effect through Congressional action, as opposed to Congressional inaction.
Frankly, the difficulty in trying to determine the REINS Act’s constitutionality is largely because the Supreme Court has failed to articulate a clear and compelling doctrine for understanding and applying the nondelegation doctrine. A friend of mine recently explained this to me within the context of the rule of Chevron deference (whereby courts defer to reasonable agency interpretations of ambiguous statutory language). As my friend explained, an agency can interpret a Law to mean X, and then later change its mind and interpret a Law to mean not-X, and the courts will generally uphold the agency’s shift in position. But, if a Law is written in such a way that it can mean two contradictory things, doesn’t that mean that Congress has improperly delegated lawmaking power to the Executive Branch? Whatever the fate of the REINS Act, I doubt that we shall see clarification in the Court’s separation of powers doctrine anytime soon.