Photo Credit: Getty Images, via billmoyers.com

By: Evan Stastny

Article I, section I of the U.S. Constitution vests “all legislative powers” with the two houses of Congress.[1] Over the years this principle has been eroded through the development and growth of what has been referred to as the “fourth branch” of government: executive agencies.[2] Between 1998 and 2013, Congress has added more than fifty new agencies.[3] The “intelligible principle” test from J.W. Hampton Jr. & Co. v. United States[4] has been the guiding test for delegating legislative authority, but it has recently become “decoupled from the historical understanding of the legislative and executive powers and thus does not keep executive ‘lawmaking’ within the bounds of inherent executive discretion.”[5] As it stands today the “intelligible principle” test requires minimal specificity in instruction from Congress when authorizing executive action.[6] The gradual concentration of power in a single branch is precisely what worried the founders, including James Madison, which is why the Constitution so clearly defines the separate powers.[7]

Creating or enforcing a test to determine when Congress has over-delegated its legislative authority is a difficult task, but this should not foreclose the Supreme Court from doing so.[8] The Court has not retreated from defining tests for or addressing other difficult constitutional questions, such as Establishment Clause violations and defining the parameters of the Second Amendment.[9] Without a more defined and restrictive test for the courts to apply Congress can delegate authority to agencies of the Executive Branch that already wield a tremendous amount of power. “The reams of regulations” that federal agencies produce would leave the Framers “rubbing their eyes.”[10]

What does this mean for the people whose lives are regulated by the “fourth branch” of government?

Confusion on where accountability lies. “When citizens cannot readily identify the source of legislation or regulation that affect their lives, government officials can wield power without owning up to the consequences.”[11] The Environmental Protection Agency (EPA) and Federal Communications Commission (FCC) provide two illustrative examples. The “Waters of the United States” (WOTUS) Rule expanded federal control to most bodies of water in the country.[12] This included tributaries of any size like creeks and streams.[13] The increased regulation would lead to more permits being required by anyone who wished to use the water, something that had previously been left to the states.[14]

More recently, the FCC voted to repeal net-neutrality rules.[15] The rules required internet service providers to offer equal access to all web content without charging for higher quality or benefiting certain websites.[16] One fear is that without net neutrality, service providers will play favorites with big companies who can pay, at the expense of small businesses or individual consumers.[17]

Regardless of whether the EPA’s or FCC’s actions were positive or negative, the fact that unelected individuals can enact change that effects millions of Americans is jarring and why Justice Clarence Thomas focused on improper delegation of authority in his dissent to Dep’t of Transp. v. Ass’n of Am. R.R..[18] A change in the test for appropriate delegation of legislative authority would mean a reduction in the speed at which things can be accomplished, which is already slow, but it may be a necessary sacrifice to prevent sweeping legislative changes made by unelected bureaucrats. I agree with Justice Thomas that, “[w]e should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power.”[19] Until a clearer test is created for courts to use, Congress will continue delegating legislative authority reducing their own accountability to the detriment of the people they serve.

[1] U.S. Const. Art. I, § I

[2] City of Arlington, Tex. v. Fed. Comm. Commission, 569 U.S. 290, 314 (2013) (Roberts, C.J., dissenting).

[3] City of Arlington, Tex. v. Fed. Comm. Commission, 569 U.S. 290, 313 (2013) (Roberts, C.J., dissenting).

[4] J.W. Hampton, Jr. and Co. v. United States, 276 U.S. 394 (1928).

[5] Dep’t of Transp. v. Ass’n of Am. Railroads, 135 S.Ct. 1225, 1250 (2015) (Thomas, J., concurring).

[6] Id. at 1251.

[7] The Federalist No. 51 (James Madison).

[8] Dep’t of Transp. v. Ass’n of Am. Railroads, 135 S.Ct. 1225, 1237 (2015) (Alito, J., concurring).

[9] Lemon v. Kurtzman, 403 U.S. 602 (1971); D.C. v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010).

[10] Alden v. Maine, 527 U.S. 706, 807 (1999) (Souter, J., dissenting).

[11] Dep’t of Transp. v. Ass’n of Am. Railroads, 135 S.Ct. 1225, 1234 (2015) (Alito, J., concurring).

[12] EPA’s WOTUS Rule Only Muddies the Waters, Edison Electric Institute, http://www.eei.org/resourcesandmedia/energynews/Pages/EPA%E2%80%99s%20WOTUS%20Rule%20Only%20Muddies%20the%20Waters%20.aspx.

[13] Todd Gaziano and M. Reed Hopper, Final ‘Waters of the U.S. Rule’ is More Overreach by EPA, Forbes, (Aug. 3, 2015), https://www.forbes.com/sites/realspin/2015/08/03/final-waters-of-the-u-s-rule-is-more-overreach-by-the-epa/#390911e3501f.

[14] Id.

[15] Keith Collins, Why Net Neutrality Was Repealed and How It Affects You, New York Times, (Dec. 14, 2017), https://www.nytimes.com/2017/12/14/technology/net-neutrality-rules.html.

[16] Id.

[17] Id.

[18] Dep’t of Transp. v. Ass’n of Am. Railroads, 135 S.Ct. 1225, 1250 (2015) (Thomas, J., concurring).

[19] Dep’t of Transp. v. Ass’n of Am. Railroads, 135 S.Ct. 1225, 1252 (2015) (Thomas, J., concurring).