Keep on Truckin'
Rabkin, Jeremy, The American Spectator
A court vests legislative powers in a regulatory agency.
Americans love gadgets. Yet some that seem wonderful at the outset, such as answering machines and mobile phones, prove tyrants in the end. Others-like the fabulous combination onion peeler and tomato masher, available only to viewers of late-night television and not sold in stores-turn out to be junk within hours of being unwrapped. When judges go after new conceptual gadgets, it usually takes years to determine their value; and in the meantime, court watchers get some hints about judicial tastes. Two cases decided this spring are particularly intriguing in this regard.
The May 14 ruling of the U.S. Court of Appeals for the D.C. Circuit in American Trucking Associations v. EPA caused as much of a stir (at least in Washington) as any ruling this year by the U.S. Supreme Court. The decision was widely praisedand in some quarters, denounced-for seeming to revive the non-delegation doctrine. But it will be a long time before we can be sure that it has done that, and if so, even longer before we know what the consequences will be.
The case deals with new air quality standards promulgated by the Environmental Protection Agency under the 1990 Clean Air Act amendments. That this "case" was actually a consolidation of more than fifty separate challenges to the same regulations gives an idea of the stakes. Three state governments challenged the EPA's new rules as excessively severe, as did truckers and other small plaintiffs; while six states demanding more stringent standards were joined by environmental and health advocacy groups. More than a hundred lawyers are listed as contributing to various briefs. The issues are so mind-numbingly technical and complex that those lawyers must have run up enormous fees. But the various challengers surely thought the money well spent, since the EPA's new standards will constrain commercial activity across the country.
In the most interesting part of the decision, the court held that the EPA had not adequately explained how it set pollution standards. The gist of the argument seems quite clear: It is as if Congress commanded the EPA to select "big guys" and the agency announced that it would evaluate candidates based on height and weight, but reveal no cut-off point. A reasonable person would respond, "How tall? How heavy?" Congress did not provide adequate guidance in the statute, the court complained, and the EPA's explanation did not do enough to clarify the relevant standards or criteria for regulatory action. As applied by the EPA, the statute violates the constitutional principle against improper delegation of legislative power.
The idea behind the non-delegation doctrine is that when the Constitution says that "legislative powers.. .shall be vested in Congress," it means what it says. Congress should be responsible for making the laws and it should not pass this responsibility off to presidents or bureaucrats with no more than a meaningless admonition to attend to "the public interest." This doctrine has not been seriously applied since the 193o's-which is why so many regulatory agencies are licensed to regulate on such vague and open-ended charters.
The Trucking Associations ruling did not apply a full-strength version of the non-delegation doctrine. Instead of calling the statute inherently unconstitutional, it said that it would be so unless the EPA could defend an interpretation of the statute that gave it a more precise and limiting character. So instead of demanding that Congress do better, the court told the EPA to offer more explanation.
Conservatives have spoken warmly about the non-delegation doctrine, partly because they assume that if Congress has to take responsibility for costly regulatory controls it will enact fewer of them. No one was very surprised when the D.C. Circuit panel in this case split along party lines, with Judges Williams and Ginsburg (both Reagan appointees) speaking up for the delegation doctrine, while Judge Tatel (a Clinton appointee) dissented. …