As part of our look at what the Court actually decided in the
decision released on June 30 we will be diving into the nuts and bolts
of government bureaucracy, AKA the Administrative State, AKA The Swamp.
First though, a recapitulation of the introduction to last Thursday's "Supreme Court curbs EPA climate authority":
The headline is a bit of a mischaracterization. The Court ruled the
EPA did not have the authority it claimed to have, a different situation
from reining in an existing authority, and that the EPA could not
simply adopt the
Affordable Clean Energy rule; that the agency had exceeded its mandate
under the Clean Air Act with the proposal and that if Congress wanted
the outcome of the Rule under CAA it would have to legislate same rather
than have the administrative state simply write rules.
However, as the Washington Post quoted a proponent of the EPA's action:
Richard Lazarus, a Harvard environmental law professor, said in a
statement that by insisting that an agency “can promulgate an important
and significant climate rule only by showing ‘clear congressional
authorization’ at a time when the Court knows that Congress is
effectively dysfunctional, the Court threatens to upend the national
government’s ability to safeguard the public health and welfare at the
very moment when the United States, and all nations, are facing our
greatest environmental challenge of all: climate change.”
It is not the Court's place to solve the problem of Congress being dysfunctional.
From Energy & Environment News' Greenwire, June 30:....
And the headliner from The American Academy of Arts & Sciences journal, Dædalus, Summer 2021 issue:
Shortly
after the 2016 election, presidential advisor Stephen Bannon vowed to
pursue the “deconstruction of the administrative state,” signaling the
new administration’s view that parts of government itself had stolen
power from the American people. But while the administrative state may
have been a new term for many Americans, debates around this so-called
fourth branch of government have persisted since its origins in the late
nineteenth century: Is the administrative state constitutional? Who
controls it? What limits should it face? And is it time for significant
change?
The Summer 2021 issue of Dædalus explores the
future of the modern administrative state—the more than two million
civilian employees working largely in government agencies and
institutions. Three options emerge: deconstruction via regulation and
control by the legislature; tweaking, which would modify existing
doctrine without making significant changes; and reconstruction, which
might involve adopting ever more flexible modes of regulation, including
direct citizen participation in making and enforcing regulation.
Charlie Chaplin and Chester Conklin struggle to
repair the giant machinery of an idle
factory in the 1936 silent film
“Modern Times.” Film distributed by the United Artists
Corporation;
image held by the Bettman Archive, courtesy of Getty Images.
To understand contemporary
arguments about deconstructing and reconstructing the modern
administrative state, we have to understand where that state came from,
and what its futures might be. This introductory essay describes the
traditional account of the modern administrative state’s origins in the
Progressive era and more recent revisionist accounts that give it a
longer history. The competing accounts have different implications for
our thinking about the administrative state’s constitutional status, the
former raising some questions about constitutionality, the latter
alleviating such concerns. This introduction then draws upon the essays
in this issue to describe three options for the future. Deconstructing
the administrative state without adopting a program of across-the-board
deregulation would entail more regulation by the legislature itself and
would insist that Congress give clear instructions to administrative
agencies. Tweaking would modify existing doctrine around the edges
without making large changes. Reconstruction might involve adopting ever
more flexible modes of regulation, including direct citizen
participation in making and enforcing regulation.
Written for a dispersed agrarian
population using hand tools in a local economy, our Constitution now
controls an American government orders of magnitude larger that has had
to respond to profound changes in transportation, communication,
technology, economy, and scientific understanding. How did our
government get to this place? The agencies Congress has created to meet
these changes now face profound new challenges: transition from the
paper to the digital age; the increasing centralization in an opaque,
political presidency of decisions that Congress has assigned to diverse,
relatively expert and transparent bodies; the thickening, as well, of
the political layer within agencies themselves; and the increasing
judicial use of analytic techniques invoking the expectations of those
who wrote the Constitution so long ago and in such different
circumstances. Never easy, finding the appropriate balance between law
and politics presents major challenges today.
The modern administrative state, as
measured by the number of agencies, their budgets and staffing, and the
number of regulations they issue, has grown significantly over the last
hundred years. This essay reviews the origins of the administrative
state and identifies four milestone efforts to hold it accountable to
the American people: passage of the Administrative Procedure Act in
1946, the economic deregulation of the 1970s and 1980s, requirements for
ex ante regulatory impact analysis, and the establishment of White
House review. These milestones reflect bipartisan consensus on
appropriate constraints on executive rulemaking, but they have not
succeeded in stemming the debate over the proper role for administrative
agencies and the regulations they issue. New milestones may include
judicial interpretations, legislative actions, and extensions to
executive oversight.
Conventional wisdom holds that
party polarization leads to legislative gridlock, which in turn disables
congressional oversight of agencies and thus erodes their
constitutional legitimacy and democratic accountability. At the root of
this argument is an empirical claim that higher levels of polarization
materially reduce legislative productivity as measured by the number of
laws passed or the number of issues on the legislative agenda addressed
by those laws, both of which are negatively associated with party
polarization. By focusing on the content of statutes passed rather than
their number, this essay shows that in the era of party polarization and
divided government, Congress has actually 1) enacted an ever growing
volume of significant regulatory policy (packaged into fewer laws); 2)
increasingly employed implementation designs intended to limit
bureaucratic and presidential power; and 3) legislated regulatory policy
substance in greater detail (reducing bureaucratic discretion) when
relying on litigation and courts as a supplement or alternative to
bureaucracy. This essay thereby complicates, both empirically and
normatively, the relationship between Congress and administrative power
in the era of party polarization and divided government.
The U.S. national government’s poor
pandemic response raises unsettling questions about the overall health
of the administrative state: that is, the agencies, people, and
processes of the executive branch of the federal government. First, are
the administrative weaknesses revealed over the last year symptomatic of
widespread problems beyond the public health bureaucracy? Second, are
the weaknesses attributable to the Trump administration or do they
reveal a deeper malady, something that afflicted earlier Democratic and
Republican administrations? In summer 2020, my colleagues and I
conducted a survey of thousands of federal executives to help shed light
on these questions. These executives reported a low opinion of the
then-current administration, the White House, and the president’s
political appointees. Yet they also reported long-standing issues of low
investment and problems of capacity that extend back into other
Democratic and Republican administrations. Years of neglect have
culminated in vulnerabilities manifesting themselves in increasingly
regular and severe administrative failures. These failures put all of us
at risk.
....MUCH MORE, including the abstracts (as above) of nine more papers. The abstract headline links take you to the individual papers.
Quite an impressive accomplishment for Dædalus and for the AAAS
