By Nathan Mehrens
On Monday, June 22, the U.S. Supreme Court granted the Obama Administration’s petition to review a case involving a Congressional delegation of regulatory authority. The case is Department of Transportation v. Association of American Railroads, and involves delegations of Congressional authority to Amtrak. This delegation was held unconstitutional by the D.C. Circuit. Such a holding in these types of cases is very rare and presents a good opportunity for an examination of the issues surrounding which branch of the federal government should be making law.
When Congress passes an act, it typically delegates part of its authority to the Executive Branch to promulgate regulations implementing the act. By doing so, the Congress is giving part of its authority over to the Executive to make law. The courts have determined that the length to which Congress can delegate its authority is long and such delegations legitimate so long as Congress prescribes an “intelligible principle governing the statute’s enforcement.” Given the vagueness of this limit, only twice has the Supreme Court found that the “intelligible principle” was lacking from a delegation. Even flimsy instructions to the agency have been deemed to satisfy the standard.
Unfortunately, Congress has decided to not only engage in broad delegations of authority to the Executive Branch, but has also delegated authority to independent agencies and at least one entity, Amtrak, that isn’t even an agency of the United States.
Under the Constitution, we are supposed to have three branches of government, the Congress, the Executive, and the Judiciary. Over the last couple hundred years, the boundaries between the branches have become blurred. Now, we have a long list of independent agencies governing everything from labor-management relations which are handled by the National Labor Relations Board, to financial issues handled by the Consumer Financial Protection Bureau. By placing authority in these independent agencies the Congress escapes blame for their actions as does the Executive Branch. As such, we’ve seen little accountability from these independent agencies and in many instances they regulate with impunity.
In the Amtrak context, the situation is even worse. Here, the delegation of Congressional authority is more extreme because Amtrak is not part of the government, a point that the statute makes expressly clear. Amtrak is a for-profit corporation. That it is chronically incapable of making a profit, “has a history of recurring operating losses and is dependent on subsidies from the Federal Government,” doesn’t change its corporate form. As such, you have a private, for-profit entity that has been delegated regulatory authority. This, the D.C. Circuit found to be too much of a stretch. In its opinion on the case the court asked the question of what would happen if General Motors was delegated regulatory authority over all car manufacturers, stating that this is essentially what Congress did for Amtrak.
Even if we get a good opinion from the Supreme Court in the Association of American Railroads case, Congress needs to act to reassert its constitutional power to write laws and to reclaim what it has unfortunately delegated away to others. The trend of shifting power and the accountability for making laws must end.
We’ve seen far too many actions from the Obama Administration that stretch the law. For instance, the Supreme Court recently held that the Environmental Protection Agency did not have the authority through the regulatory process to rewrite numerical figures in the plain language of a statute that applies to emission standards. While the blame for these actions lands squarely on the President, Congress could act, if it so desired, to reassert its authority to make regulations. Instead, Congress seems content to continue to keep passing statutes that grant away broad discretion to write regulations. The issue is compounded when Congress goes one step further and gives this broad grant of authority not to a co-equal branch of the government, but to a private entity.
Congress needs to take back its constitutionally granted lawmaking functions. It can start with the independent agencies, and Amtrak, but it should also reduce the Executive’s regulatory authority. Doing so will return a measure of political accountability because voters get a say on who represents them in Congress and the White House, something they don’t get for the plethora of independent agencies and other entities that regulate their lives.
Nathan Mehrens is president of Americans for Limited Government.
