The late Justice William Brennan's reputation as the most influential Supreme Court justice of his generation will soon belong, and should by rights already belong, to Brennan's staunchest opponent, Justice Antonin Scalia. This is good news for the Constitution–and, on the whole, for libertarians.
Admittedly, the comparison may seem inflated, or at least premature. During his 34 years on the bench, Brennan authored scores of path-breaking majority opinions, in the process creating a "Living Constitution" consonant with his egalitarian predilections. Scalia, in contrast, is known for his acerbic dissents and, especially during the past five years, has written few important majority opinions.
The Supreme Court's jurisprudence, however, provides ample evidence that Scalia has largely succeeded in his ambitious central project–the repudiation of Brennan's Constitution and the restoration of a jurisprudence grounded in the constitutional or statutory text. Not long ago, Supreme Court decisions routinely revolved around constitutional "values" or invented legislative "histories"; now, they typically follow the text of the law.
Legal scholars and journalists (even and especially those of a left-liberal persuasion) generally agree both on the increased salience of textual arguments in Supreme Court opinions and on the signal importance of this trend. Legal scholars and journalists such as the New Republic's Jeffrey Rosen are now making a sport of lambasting Justice Scalia for his alleged "activism" and infidelity to textualist principles. Coming from long-time cheerleaders of the Court's flights into a wonderland of liberal "values," the criticism is noteworthy chiefly for its mendacity. Still, it illustrates the extent to which Scalia has managed to define the terms of the debate.
The legal and media establishments have been relentlessly hostile to Scalia's project, and he has had to make do with a sharply divided Court whose direction, such as it is, seems to depend chiefly on Justice Sandra Day O'Connor's intuitions and mood swings. Why, then, is textualism carrying the day? Part of the answer lies in the force of Scalia's argument. Another and probably larger part lies in Scalia's persistence and energy, his awareness of the limits of abstract theory, and his clear understanding of the political context within which the Supreme Court operates.
A Matter of Interpretation demonstrates both the attraction of Scalia's "textualist" theory and his qualities as a judicial statesman. It consists of Scalia's lecture by that title, along with responses by Laurence Tribe and Ronald Dworkin and essays by Gordon Wood and Mary Ann Glendon. (The book also contains Scalia's reply to his critics.) Scalia's elegant essay, the most concise and accessible presentation of his views, argues eloquently that judicial authority can only be based on the statutory or constitutional text; that words have an ascertainable meaning; and that a judiciary that invents law rather than applying it lacks legitimacy and threatens democratic governance.
Tribe's and Dworkin's responses illustrate the force of Scalia's theory. Both are notorious for urging judges to boldly go where none have gone before. Here, however, both profess an unflinching commitment to textualism. Tribe claims to "share with Justice Scalia the belief that the Constitution's written text has primacy and must be deemed the ultimate point of departure." Dworkin calls the idea of a nontextualist Constitution "hardly even intelligible" and huffily denies that he, or Brennan, or anybody else, ever endorsed such a notion.
They don't mean it. Dworkin maintains that the Eighth Amendment prohibition of cruel and unusual punishment renders the death penalty unconstitutional. This, he says, is "the most natural statement of what the authors of the Eighth Amendment intended to say," and never mind that several clauses of the Bill of Rights explicitly contemplate the death penalty. Tribe, while conceding that "nothing that is contrary to the text of the Constitution can be part of it," insists that the Constitution projects "a set of messages undergoing episodic revisions that reverberate backward as well as forward." Unfailingly, the messages coincide with the liberal cause du jour. Over the years, Tribe has peddled a half-dozen increasingly absurd arguments for Roe v. Wade. None has reverberated, but Tribe remains supremely confident that the right to abortion on demand is right there in the Constitution. As for the death penalty, Tribe is awaiting the next episodic revision to make up his mind. In short, Dworkin's and Tribe's textualist pretenses are a thin cover for their effort to mobilize the Constitution for left-liberal causes.
Once asserted, however, the pretense ensures that the debate will be waged on Scalia's textualist territory. This territory still leaves ample room for judgment (or manipulation), and judges will often disagree about the precise meaning of the text at hand. But as Scalia observes, once the central importance of the legal text is conceded, judges will at least argue about the right questions. Textual arguments must eventually be contested on textual grounds, and this necessity has a constraining effect. On a Supreme Court that otherwise lacks an intellectual center, textualism has exerted a powerful gravitational pull.
Generally, the pull has been in an anti-statist direction, and this tendency flows directly from the theory. Scalia distinguishes textualism not only from a free-wheeling Living Constitution but also from a crabbed notion of "strict construction." A legal text, Scalia observes, should be construed neither "strictly" nor broadly, but fairly. If the text itself fails to supply the answers (as is sometimes the case), the structure of the legal document and prevailing historical traditions are useful and legitimate sources of interpretation.
Scalia is not a libertarian per se. However, his understanding of textualism systematically drives interpreters toward results that are far more individualistic than judicial flights into constitutional values and emanations, which will almost invariably have a collectivist bent.
Once the Supreme Court strays from the text, it must find legitimacy elsewhere. It must build and maintain political support, and so constitutional law becomes another interest group racket. Brennan's Living Constitution was at bottom a campaign for the political support of the governing liberal elite and its favored constituencies–blacks at first, then other minorities, then women.
Even the Brennan Court's ostensibly libertarian commitments typically followed the dictates of egalitarian politics. Free access to abortion was thought to be good for women's liberation. Similarly, the Court expanded (some) First Amendment rights, first, because a "robust dialogue" seemed to favor the downtrodden and, second, because spouting off is how intellectuals–the Brennan Court's base of support–earn their living. When it came to the free speech of, for example, political campaign contributors, Brennan ditched the First Amendment (tellingly, over Scalia's strenuous objections). And now that civil rights groups no longer like free speech (because someone else seems to be winning the debate), Brennan's disciples are pushing speech codes and "harassment" regulations, on the theory that speech that isn't nice to women and racial minorities isn't really speech.
Scalia, in contrast, has upheld traditional First Amendment rights against "hate speech" regulation (RAV v. St. Paul, 1992). He dissented when a coalition of abortion enthusiasts and The-State-Can-Do-No-Wrong conservatives on the bench ran roughshod over the free speech rights of abortion protesters (Madsen v. Women's Health Center, 1994). He dissented when the Court curtailed the constitutional right to confront one's accusers in child abuse trials (Maryland v. Craig, 1990). And in Lucas v. South Carolina Coastal Council (1992), the most important "takings" case of the past decade, Scalia engineered a partial reconstruction of constitutional protection for common-law property rights, while his evolutionist brethren denounced private property as a menace to global survival. In short, since the constitutional text is far more individualistic than the evolutionist's political commitments, textualism favors individualism while constraining egalitarian usurpations.
The trouble with textualism is that it may not be enough of a constraint. Ronald Dworkin can turn any statement on its head; willful judges can turn any theory into a joke. Interpretive theory has its limits. Scalia is acutely aware of this difficulty and tries to meet it with an explicitly political argument: The continued invention of extra-constitutional rights, Scalia warns in A Matter of Interpretation, may trigger a majoritarian response. "At the end of the day," he writes, "an evolving constitution will evolve the way the majority wishes." Scalia does not advocate a majoritarian backlash. Rather, he invokes it as "the only thing that will strike fear in the hearts" of liberal judges and, consequently, force a return to constitutional norms.
Scalia is exactly right in observing that politics, not theory, is the ultimate constraint on wayward judges. He is equally correct in observing that a Living Constitution under majoritarian auspices can't possibly be good for individual rights. Still, the point seems overdrawn: The public has been exceedingly tame in resisting the Court's usurpations on behalf of the powerful few. Scalia knows this; he muses that he may be "overestimating the democratic vigor of our institutions."
Scalia's ferocious dissents are designed to foster opposition to the Court's anti-democratic usurpations. In Romer v. Evans (1996), for example, the Supreme Court declared that the voters of Colorado could not bar the enactment of special "civil rights" protections for homosexuals. The majority did not bother to cite a single precedent or to marshal anything one might call an argument. Scalia met this ham-fisted decision with sarcasm, sneers, and an explicitly ideological critique. The Court, he pointed out, had chosen sides in the Kulturkampf and decided to protect the lifestyles of the Hollywood set against the preferences (in the Court's pernicious term, the "animus") of the neither rich nor famous.
Scalia's sharp tone has its drawbacks. For one thing, it occasionally detracts from his arguments–such as his point that the Romer Court, in its desperate urge to protect homosexual "rights" against "discrimination," ran roughshod over the voters' desire to protect the far more fundamental association rights of religious citizens. Scalia's substantive arguments against the Romer Court's insulting description of such rights as "bigotry" should persuade anyone seriously interested in individual rights, but those arguments tend to get lost in his invective against the Court's "terminal silliness."
Moreover, Scalia's rude language invariably hurts Justice O'Connor's feelings. In Planned Parenthood v. Casey (1992), the Supreme Court opined that the constitutional "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of life" precludes abortion restrictions that O'Connor considers an "undue burden." Scalia's brutal dissent openly questioned O'Connor's judicial competence. After this flap, O'Connor appears to have signed a Scalia majority opinion in only two contested cases (St. Mary's Honors Center v. Hicks, a mildly interesting case involving burden-of-proof questions in civil rights litigation, and BFP v. Resolution Trust Corp., an impenetrable bankruptcy case). Since the conservative majority on the Court cannot prevail without O'Connor's vote, Scalia rarely gets to write a majority opinion in a controversial case.
It's hard to believe that Scalia ignores these costs simply to vent his frustration (though, in fairness, he could hardly have predicted that O'Connor would sulk for a full five years). Nor, contrary to frequent suggestions, do Scalia's classic dissents betray an uneven temperament; by all accounts, he is a good-natured fellow. While his outrage at the Court's escapades is real enough, his sarcasm and invective are calculated. Since he cannot reason with Imperial Justices, he must show that they are stark naked. The point is to attack not merely the Court's decisions but its legitimacy. The complacent public needs a wake-up call, preferably from the bench. If the other justices get rattled, so much the better.
Scalia has been compelled to write far too many angry dissents. The fact that he wrote no such dissent this past term suggests that his argument has begun to hit home. In the "right to die" cases, for example, a unanimous Supreme Court found that there is no constitutional provision to support a right to enlist one's doctor in killing oneself. This observation is correct–and a bit perplexing. There is also no constitutional basis to enlist a doctor's help in killing something that at some point is someone else, and yet this right (enshrined in Roe v. Wade) remains sacred. The Supreme Court's restraint in the right-to-die cases reflects not only the influence of Scalia's textualist theory but also, and primarily, his warning of a possible backlash.
If textualism is in one sense not enough of a constraint (thus requiring a political flanking maneuver), it is in another respect too much of a constraint. Under a textualist reading of the Commerce Clause, for instance, 90 percent of the federal government's business is flat-out unconstitutional, having nothing to do with the regulation of interstate commerce. But the Supreme Court cannot single-handedly repeal the New Deal, much as this prospect may cheer readers of REASON. Among other things, the justices must take account of six decades' worth of precedents.
In A Matter of Interpretation, Scalia allows for precedents and stare decisis as a modification (but not a part) of his interpretive theory. He outlines a few rules indicating when the Court may or should overrule precedents, mostly those that are clearly wrong and lack an extended pedigree. Ultimately, Scalia suggests that textualism's utility lies primarily in preventing new judicial departures into outer space. But this defense is a bit lame. It suggests that we must live with rules that are anti-democratic and wrong–and predominantly based on egalitarian preconceptions.
Scalia would find more favor among libertarians if he pushed textualist arguments further and harder, precedents be damned. And in truth, his opinions have been more ambitious than his circumspect essay would suggest. Printz v. United States, decided last June, is one of Scalia's rare majority opinions. (O'Connor signed the opinion but, true to form, submitted a separate concurrence.) The decision struck down the federal Brady Act, which directed local sheriffs to conduct background checks on would-be gun purchasers.
Fearful of producing a full-scale confrontation with Congress, the Supreme Court had in earlier, similar cases shied away from a direct examination of whether Congress possessed an "enumerated power" to legislate and instead asked the narrower question of whether the 10th Amendment permitted Congress to "commandeer" the states in the exercise of its powers. The 10th Amendment, however, says nothing about commandeering. It reserves to the states or to the people powers not granted to the federal government, thus reaffirming the "enumerated powers" doctrine the Court has tried to skirt.
Scalia's ingenious Printz opinion admits as much and instead bases the decision on the structure of the Constitution. This structural argument affirms a robust notion of dual sovereignty between the states and the national government. In the end, Scalia even maintains that Congress lacked the power to enact the Brady Act under, of all things, the Necessary and Proper Clause–thus suggesting, for the first time in a "commandeering" case, a resurrection of the enumerated powers doctrine.
Commenting from the bench, Justice John Paul Stevens compared the Printz majority opinion to Brennan's jurisprudence of extra-textual "penumbras" and "emanations." In the sense in which Stevens intended the point, it is cheap polemics. Scalia's structural argument reflects the actual constitutional structure, not some fanciful emanation. In going beyond the text and the precedents, Scalia brings the law back to the actual Constitution.
In a different respect, however, the Printz opinion does have a Brennanesque flavor. Brennan routinely laced his opinions with sweeping statements that were unnecessary to decide the case at hand. His brethren either failed to notice these land mines or neglected to defuse them on the spot, since they seemed so far afield from the constitutional ground the Court was then treading. But the charges often exploded in a later case, when Brennan, who always thought two or three cases ahead of his colleagues, would cheerfully invoke his earlier, expansive dicta as well-settled law. Printz has the same quality. Its expansive pronouncements are not the holding of the case, but they open up broad opportunities for a reconstruction of constitutional principles. Open to question as a matter of precedent, the opinion is a masterpiece of judicial statesmanship.
"With five votes, you can do anything around here," Brennan once candidly summed up his "jurisprudence." Scalia has spent a good part of his career articulating a coherent theoretical response to a five-vote tyranny. This theory is bringing us a long way from the Living Constitution and back to the far more individualist, libertarian Constitution that we actually have–both on account of textualism's inherent attraction and because Scalia, like his arch-foe and fellow Catholic William Brennan, understands that great justices are like great popes: While they cannot be great without a coherent view of the world, they are in the end admired not for their theoretical contributions but for their statesmanship and their ability to bend institutions to their will. Antonin Scalia, like his pope, is well on his way to greatness.
Michael Greve (cir@mail.wdn.com) is executive director of the Center for Individual Rights in Washington, D. C.
The post Vexed by the Text appeared first on Reason.com.
]]>This is an expansive reading of Supreme Court precedents on hate speech. As such, it is most welcome. And it is inspiring to see a bunch of students, litigating pro se, beat the clever Stanford law professors who drew up the code. Still, one is hard pressed to celebrate the case as a victory for free speech. Stanford is a private university, and one must wonder what happened to its freedom of speech and freedom of association—not to mention its property rights—in this case.
The students could not have sued Stanford under the First Amendment were it not for the "Leonard Law." In essence, this unique provision in the California Education Code makes the First Amendment directly applicable within all private, postsecondary educational institutions in the state, treating college rules as though they were government restrictions. Stanford argued that the Leonard Law is unconstitutional because it compels private institutions to associate themselves with ideas that they do not wish to express or even tolerate. The court ruled that the Leonard Law did not restrict Stanford's speech, but merely "expand[ed] the realm of speech without favoring one side or the other." It also held that the law did not burden Stanford's freedom of association because the university could easily disassociate itself from the hateful speech it was seeking to discourage—for example, by publicly denouncing it.
Stanford didn't appeal. President Gerhard Casper told the press that he despaired of explaining to the public a position that he could not even explain to Stanford's students and trustees. It thus falls to those who are unencumbered by President Casper's official responsibilities to explain why the Leonard Law is probably unconstitutional and, in any event, a very stupid idea.
A student's decision to enroll at Stanford, on whatever terms and conditions it offers (including disciplinary rules), is voluntary. Both the freedom to take one's money and talents elsewhere and the freedom to sue the university for failures to uphold its end of the bargain are powerful antidotes to P.C. tyranny.
One would not expect this argument to persuade the American Civil Liberties Union: Lacking confidence in private autonomy except when it comes to sex, the ACLU supports the Leonard Law, and its lawyers have been busy forcing private actors it doesn't like (such as Georgetown University) to fund, sponsor, and include the speech of groups it does like (gay and lesbian groups). However, it is disconcerting to watch otherwise sensible people hop on this statist bandwagon.
The conservative Individual Rights Foundation, a public interest law firm in California, has threatened private colleges with lawsuits under the Leonard Law. It has also embarked upon a campaign to bring that law to other states, and has vowed to lobby for statutes that would prohibit private employers from restricting their employees' freedom of speech. Similarly, Rep. Henry Hyde (R-Ill.) has proposed to amend Title VI of the Civil Rights Act—which prohibits discrimination in federally funded institutions—to require the recipients to also observe the First Amendment.
While well-intentioned, such conservative attempts to combat P.C. mania with regulation are seriously misguided. Conservatives cannot beat the left at its game of creating private rights against "discrimination," and they shouldn't even try. This is more than a point of abstract principle; it affects not merely speech codes, but broader civil rights questions.
Modern free speech law has two basic tenets: a "wide-open and robust" public debate, and strict government neutrality with respect to the content and viewpoint of private speech. This means Americans must suffer a certain social incivility, and we wind up protecting false and pernicious ideas along with intelligent, rational discourse. But these costs are dwarfed by the manifest dangers of the alternative to robust debate—allowing a monopolistic government to police the marketplace of ideas. Similarly, we insist on government neutrality as our only effective hedge against government favoritism.
But rules that guard against government abuse make no sense when applied to private institutions. In a non-monopolistic market, any central, uniform rule—even a rule that itself embodies the values of freedom and diversity—will almost invariably restrict private options and social diversity. None of the thousands of colleges and universities in this country can coerce conformity among anyone except the faculty and students who have voluntarily contracted into the existing arrangements. In this context, "First Amendment principles" are not a guarantee of freedom but a zero-sum game of redistribution. They marginally expand the "freedom" of some individuals—for example, those who want to work or study at Notre Dame without speech codes, or at a multicultural St. John's. But Notre Dame and St. John's lose the freedom to be Notre Dame and St. John's.
For this reason, the First Amendment is generally understood to protect private speakers against compelled speech and association. Thus, the Supreme Court has struck down state laws imposing a "right of reply" requirement upon newspapers, on the grounds that such a requirement would force private speakers to associate themselves with unwelcome speech.
Unfortunately, however, the Supreme Court, in a particularly egregious 1980 case, Pruneyard Shopping Center v. Robins, upheld a California statute that granted picketers and leafleteers access to private shopping malls. Private malls, the Court said, are in effect public places and, unlike newspapers, have no viewpoint of their own that could be distorted by other private speakers on the premises.
One would think that universities are more like newspapers than shopping malls. They trade in ideas and speech, and the right not to transmit or to associate themselves with speech is central to their function. Nonetheless, the Stanford case was decided principally under Pruneyard and its tortured reasoning.
The court reasoned that Stanford had in effect forfeited its right to exclude by opening its campus and admissions to the general public. Using the same implausible argument, other courts have held that the "generally open" St. Patrick's Day Parade cannot exclude gay and lesbian advocates, except when the parade is being held in protest against the court-ordered inclusion of such groups. Perhaps Stanford can now exclude hateful speech in protest against the Leonard Law, even if it cannot do so as a general matter.
The Stanford decision also followed Pruneyard in holding that the law which compelled the toleration of unwanted speech was "neutral" and did not impose any particular viewpoint or "dogma." Wrong again. The Leonard Law imposes a dogma—namely, the idea that education is best pursued in an atmosphere of "robust debate." (The California court went so far as to label this a "compelling state interest.") But what of educational institutions that place a priority on rational discourse, discipline, or civility?
Religious institutions in particular are inclined toward the search for truth through obedience to tradition rather than robust debate—and toward policies that are more restrictive than those allowed under the First Amendment. To be sure, the Leonard Law contains a narrow exception for institutions that are "controlled by a religious organization," as does the Hyde Amendment. But even entirely secular colleges should be entitled to believe that there is good speech and bad speech; that they should teach the good and discourage the bad; and that they should not be forced to provide a forum for Khalid Muhammed or David Duke, notwithstanding their undeniable contributions to robust debate. Strange as it may sound to California judges, millions of individuals are eager to enroll in such censorious institutions. Depriving them of that option (or confronting them with an all-or-nothing choice between a bible school and a free-for-all) is not a plausible state interest, let alone a compelling one.
Rep. Hyde's proposed amendment, unlike the Leonard Law, would not directly impose First Amendment controls on private institutions; it would merely condition the receipt of federal funds on the observance of the Free Speech Clause, much as Title VI and IX of the Civil Rights Act restrict federal funding to non-discriminatory institutions. Taxpayers, the argument goes, cannot be called upon to support institutions that discriminate on the basis of race, ethnicity, sex, and so on. Why, then, should they be asked to support institutions that discriminate on the basis of someone's viewpoint? Having accepted the sweet of government funding, private colleges should also accept the bitter of abiding by the rules that apply to the government.
This may sound more pleasant to libertarian ears than the authoritarian drums behind the Leonard Law. But the Hyde Amendment would be even more dangerous to free speech and free choice.
Since Title VI and Title IX cover practically every educational institution in America, the reach of the Hyde Amendment would be nearly identical to that of a national Leonard Law. But unlike the Leonard Law, the Hyde Amendment would not only authorize private lawsuits by students; it would also, and principally, empower the Education Department's Office for Civil Rights (OCR) to enforce compliance by means of investigations and "voluntary" agreements with recipient institutions, reached under the threat of withholding federal funds.
In the hands of OCR and federal judges, the simple Title VI prohibitions against discrimination have mutated into goals, timetables, quotas, and diversity mandates. In the same way, under any rule that prohibits discrimination against speech, OCR would soon claim an affirmative mandate to ensure viewpoint "diversity." It already claims the authority to regulate "harassing" speech that may be perceived as hostile by women or minorities, including scholarly teaching and writing on controversial subjects. The last thing this agency needs is an actual legal mandate to investigate what's being said, taught, and written on private campuses.
In the world of the Leonard Law, conservative students and legal foundations can club a few more P.C. administrators over the head. But by that same token, the ACLU can and will compel Wellesley or Kenyon to show equal concern and respect for Nazi marches across their campuses and beggars in their libraries. The Hyde Amendment would in addition empower the OCR to bully and cajole private colleges to guarantee free speech (except, of course, ethnocentric and sexist speech) until every last one of them complies with the reigning standards of orthodoxy. Quite apart from libertarian scruples about imposing government norms on private actors, this bargain is not worth having.
The willingness of some conservatives to strike that bargain represented merely a lack of judgment at a time when liberal institutions, from Congress on down, looked well-nigh unassailable. In that environment, the attempt to beat the liberals at the anti-discrimination game seemed plausible—or at least, less implausible than the alternative of dismantling bureaucracies in the education sector and elsewhere. After November 8, 1994, such a campaign looks quite feasible.
Thus, conservatives should not send the muddled message that they wouldn't mind regulation so long as it helps the politically incorrect. It is more principled and more promising to insist that free speech is so vital and sacred that no one should tolerate government interference—even in the form of non-discrimination laws, and even if such laws are useful when it comes to private conduct.
Conservatives could also accept the premise that the Hyde Amendment and the Leonard Law share with leftist attempts to regulate speech, which is that speech is not so different from conduct after all. But they should then turn the argument around, and insist on the private right to discriminate in both areas and for similar reasons—freedom of contract, protection against compelled association, and social diversity.
This position strikes at the heart of the civil rights empire. It is a respectable position, and it is precisely in the context of speech that it will strike people as most plausible. Ultimately, the case for private discrimination may be too shocking for popular consumption. But it deserves serious consideration, and sounding two cheers for private speech codes would be a good way to test the water.
Michael S. Greve is executive director of the Center for Individual Rights, a public interest law firm in Washington, D.C.
The post The Law: Forcing Free Speech appeared first on Reason.com.
]]>Citizens' disgust with Washington, D.C., is not only reaching new heights; it is also aiming at new targets. Demands for structural, institutional reforms such as term limits and the Balanced Budget Amendment, rather than tax relief or other specific policy demands, now dominate the popular anti-government agenda. George Will's and John Fund's paeans to term limits, as opposed to more policy-oriented works, are now conservative-libertarian must-reads.
The clamor for radical institutional reform should come as no surprise; nothing else seems to make a difference. The liberal agenda is thoroughly discredited. Nobody believes that our sprawling, meddlesome government is a rousing success. Still, the political aristocracy in Washington, D.C., clings to its ways and even attempts to expand, as in the past year's thwarted attempt to commit the nation's entire health industry to Washington's tender loving care. Sensibly enough, voters have concluded that there is something wrong not just with this or that policy, but with the system.
David Schoenbrod's splendid little book fits squarely into this agenda for structural reform. It is an impassioned argument against one of the ways in which Washington wields power–the congressional delegation of lawmaking authority to administrative agencies, courts, and special interest groups.
Such delegation was once understood to be hazardous to republican government. Delegation breaks the chain of accountability that links the voters to their elected representatives; legislators cannot be held truly responsible for rules that were made by someone else. That is why John Locke argued that "the legislative cannot transfer the power of making law to any other hands," and why the Founders vested all federal legislative power in the Congress.
Nowadays, in contrast, delegation is considered a practical necessity, not an unmitigated evil. Any administrative state will require some delegation, it is widely assumed. Congress cannot be bothered with every detail or lay down rules for every contingency. Many questions of governance require technical expertise, which administrative agencies–but not generalist legislators–possess. And since the distinction–on which the opponents of delegation must rely–between making rules and interpreting them is fluid, if not entirely metaphysical, bureaucrats might as well run our lives as long as Congress indicates the general direction.
Schoenbrod shows that this purportedly pragmatic argument is in fact ideological hogwash. Congress doesn't delegate because it lacks the time or knowledge to deal with questions of detail; it delegates in order to exercise, as it were, power without responsibility.
Delegation makes interest-group bargains easier. For example, Congress has conferred upon the secretary of agriculture the authority to issue so-called agricultural marketing orders, which restrict supply, drive up prices, and thus create economic rents for producer cartels. It would be harder for the cartels' legislative patrons to ram the same deal through Congress. Moreover, once the power to fix prices has been delegated, it will remain largely unchecked, because the benefits of the arrangement fall upon a handful of beneficiaries (who will invest significant resources in maintaining it), while its costs are widely dispersed. Besides, the monitoring costs are prohibitive not only for voters but also for legislators, with the exception of the committees and subcommittees dominated by agricultural interests.
The New Deal, of course, operated precisely on this principle of entrusting bureaucracies with sweeping authority to regulate "in the public interest"–meaning, usually, to provide concentrated interests with an institutional mechanism for rent collection. In the modern era of social and especially environmental regulation, delegation has taken a different form. Congress typically prescribes absolutist environmental goals–"fishable and swimmable water" everywhere in the United States, air quality that protects public health "with an adequate margin of safety"–and instructs the Environmental Protection Agency to attain them promptly, by a certain date, and without regard to cost or technological feasibility.
If and when the agency takes these commands seriously, it will inflict severe pain on producers, workers, and consumers. Congressmen will then rush to denounce the agency; in exchange for a modest campaign contribution, they may also agree to rescue constituents from the "arrogant, runaway" bureaucracy. (They may go further: when President Reagan's first EPA administrator, Ann Gorsuch, called Congress's bluff and threatened to enforce the Clean Air Act, irate lawmakers engineered her removal.)
On the other hand, when the EPA backs off, it will miss the statutory targets, and lawmakers will rail against a "lawless" agency that has made "sweetheart deals" with polluters and ignored the "plain will of Congress." Either way, legislators get all the credit for their environmental commitment–and none of the blame for the attendant costs and dislocations.
Delegation, then, tends to produce the government we love to hate: a sprawling, meddlesome bureaucracy; shady and virtually unassailable arrangements between organized interests, captured agencies, and congressional subcommittees; policy fiascoes for which nobody can be held responsible; and endless dithering and horsetrading. Bureaucrats can't resolve conflicts that Congress, in its desire to please everybody and offend no one, has papered over. The result is less liberty, less democratic accountability, and more–and more unreasonable–regulation.
As Schoenbrod concedes, we would have this sort of government with or without delegation. For example, Congress does not normally delegate its authority to tax; still, few would argue that the tax code is less of a special-interest circus than any regulatory program. For another example, it is hard to imagine a more unambiguous legislative enactment than Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, sex, and other suspect classifications. Yet somehow, bureaucrats and judges managed to twist it into a quota and diversity racket.
The argument against delegation derives its plausibility in part from the contrast between hordes of unaccountable bureaucrats and 535 elected representatives. But Congress itself is a huge, fragmented apparatus, and curbing delegation may simply shift the power to make rules from one swarm of faceless drones at the EPA to another swarm in the Rayburn Office Building.
Finally, it is painfully obvious that delegation is only one among countless devices through which Congress abuses the people. Entitlement programs are on autopilot. Expenditure increases are declared to be budget cuts because they are calculated from artificially inflated baselines. "Legislation" passes in the form of appropriation riders and legislative vetoes, without up-or-down votes or bicameral consent. And so on. "Power without responsibility" is not the hallmark of delegation alone; it is our legislature's general operating principle.
For all that, the very fact that Congress resorts to delegation so frequently and extensively shows that it is a highly effective way of institutionalizing irresponsibility, and that lawmakers find the alternatives more costly. Curbing delegation would therefore be worthwhile, even if Congress could find partial substitutes.
The critical question is how to do this. There is no easy answer. The institutional incentives–the desire to do favors and to escape blame–that make delegation so popular also ensure that the players won't change the system. Only sustained public outrage might make them do so, but delegation is far too arcane a subject for radio talk shows or call-in campaigns.
Schoenbrod knows this and explains, in a critical chapter, "Why the Courts Should Stop Delegation (and Nobody Else Can)." He argues persuasively that the logic and language of the Constitution impose limits upon delegation; that the Supreme Court has ignored these limits and, in fact, denied their existence for decades; and that the commonly cited reason for this abstention–the lack of judicially manageable standards of permissible delegation–is a cop-out.
However, the Supreme Court is rarely guided by intellectual integrity and constitutional logic, and it is highly unlikely that the Justices would develop a robust non-delegation doctrine on their own.
As Schoenbrod himself ably demonstrates, the argument against delegation rests ultimately on a substantive presumption in favor of private orderings and against government intervention. The entire point of prohibiting delegation is to force a resolution of conflicts and to focus responsibility–in economic language, to drive up legislative transaction costs. So long as legislation requires a near-consensus, laws will be genuinely public-regarding or, at least, reflect a broadly acceptable compromise. But a reduction of transaction costs, through delegation or other means, increases both the total volume of legislation and the ratio of special-interest scams.
The Founders, of course, thought that this would be bad, which is why we have bicameralism, the presidential veto, and separate constituencies and different terms for the president, the House, and the Senate. The trouble is, the Supreme Court has a very different perspective. Modern constitutional law is based on the premise that the Court must not interfere with interest groups politics except to protect racial and other minorities or "preferred freedoms," such as speech and sex. Contracts, property, and other such rights that are the target of ordinary legislation are largely ignored, as are the structural constitutional constraints that used to protect liberty.
The Court's permissiveness toward delegation is of one piece with this perspective. Both are intellectually bankrupt, but the Court cannot shift gears without precipitating a major brawl with Congress. The Court doesn't do that very often. The most recent example in fact is the Court's resistance to the New Deal. Not surprisingly, the two cases in which the Supreme Court last struck down congressional enactments on delegation grounds date back to this era. But the Court lost the constitutional war, and the precedents that gave force and effect to the constitutional constraints on the federal government, including the anti-delegation cases, were effectively overruled. The Court correctly concluded that in the long run, it cannot resist the social and political elites. It has been loathe to challenge the Congress ever since, and it will not seriously attempt to do so in the future.
"It's time for a little perestroika on the Potomac," David Schoenbrod writes at the end of his book, and few would disagree. Despite his compelling analysis, Schoenbrod has surely failed in persuading the Supreme Court to bang the gavel on delegation. He may take solace, though, in having brought ordinary readers closer to picking up pitchforks. That, in the end, is how perestroika happens.
Michael S. Greve is the executive director of the Center for Individual Rights, a public-interest law firm in Washington, D.C.
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