Delegation As A Danger To Liberty

What is the relevant concept of liberty?

For the Framers of the Constitution, liberty was essentially the right to be left alone by government unless some important public purpose warranted intervention.The modern Supreme Court has embodied this concept in the so-called heightened scrutiny standards of judicial review.

To protect liberty, thus understood, the Framers adopted several complementary strategies. Of these strategies, modern case law has most frequently addressed the judicially enforceable rights that are expressly articulated, notably, those found in the Bill of Rights. These constitutionally enumerated rights prohibit specified types of government actions, such as censoring speech or preventing the free exercise of religion.

Important as they are, explicit constitutional rights are not co-terminous with the Framers’ appropriately broad concept of liberty. Rather, from the broad array of possible government actions that undermine liberty, these express rights carve out a few such actions that are barred, or at least subject to close judicial scrutiny. These rights generally concern those government actions that are particularly likely to lack an important public purpose or to present a peculiarly grave threat to individual freedom. But these explicit constitutional rights do not protect us from many other threats to our liberty — our right to be let alone absent the need to promote an important public purpose. In short, these judicially enforceable, express constitutional rights do not, in many circumstances, stop government from imposing regulations or taxes for what are actually private purposes.

Because explicit constitutional rights fall short of fully guaranteeing the Framers’ conception of liberty, we must look elsewhere for further protection. One possible source of such further protection is contained within the legislative process defined in Article I — a second essential strategy that the Framers designed to protect liberty. This complementary strategy actually preceded the development of enumerated judicially enforceable rights. In fact, Alexander Hamilton opposed adding a bill of rights to the Constitution on the ground that “the constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS.

Hamilton was wrong in concluding that the Constitution, including the Article I legislative process, makes a bill of rights superfluous, as his contemporaries fortunately perceived and history has proved. But Hamilton was correct in concluding that the legislative process significantly helps to protect liberty.

Delegation of this constitutionally defined lawmaking power to regulatory agencies undercuts its important protection of liberty in four ways. First, delegation shifts power from Congress and the President — two highly visible institutions that are responsive to a broad spectrum of interests — to various agencies, commissions, and boards — lower-visibility institutions that are attuned to only a small subset of all the interests. According to the political science literature, agencies are dominated by their top officials, a small group of persons from the private sector, and a few key members of Congress. As John Hart Ely observed, “one reason we have broadly based representative assemblies is to await something approaching a consensus before government intervenes. But no such consensus is needed when legislative power is delegated.

Second, delegation allows legislators and the President to shift much of the blame for unpopular government policies to the agencies. Therefore, an important deterrent to enacting unpopular laws does not deter unpopular regulations.

Third, delegation makes it far easier to impose new laws. In James Madison’s words, Article I was meant to curb the “facility and excess of lawmaking” by requiring that statutes go through a bicameral legislature and the President. Madison’s view that the legislative process would tend to discourage narrowly partisan laws — though not eliminate them — has been borne out by much recent political science literature. The differing constituencies of representatives, senators, and the President — and the differing lengths of their terms in office — make it likely that they will be partial to varying interests. This diversity of viewpoint, coupled with the greater difficulty of prevailing in three forums rather than one, means that popular support sufficient to produce a bare majority in a unicameral legislature would probably fail to get a statute through the Article I process.

The fourth respect in which delegation threatens liberty is consolidation of lawmaking and law enforcement power in the same hands.

I do not mean to suggest that agencies can make whatever laws they want, whenever they want. The constraints on agency lawmaking that do exist, however, do not adequately protect individual liberty. First, agencies must comply with the Administrative Procedure Act. As the name suggests, though, those requirements are simply procedural in nature. They merely slow down agency lawmaking and do not necessarily weed out laws that violate liberty or lack an important public purpose.

Second, persons affected by agency-made law do have a right to seek judicial review. But such review is usually highly deferential. Agencies have learned to shield even narrowly partisan regulations from judicial reversal by presenting them as the product of reasoned analysis aimed at promoting a public purpose.

Even if the reviewing court finds some flaw in the agency’s analysis, the agency remains free to reach the same result backed by a new explanation that is crafted to overcome the court’s prior criticism. In the words of University of Texas law professor Harold Bruff:

An agency desiring a particular policy outcome can [survive judicial review through] the charade of hearing from everyone interested, responding to their views and data in rational discourse, and elaborating a rationale for the decision that is coherent, supported by the administrative record, and consistent with prior agency policy and known statutory intent.

My point is not that administrative procedure and judicial review of agency action are worthless in protecting liberty. Rather, my point is that the legislative process is more effective than the administrative process in doing so. The United States Supreme Court apparently agrees. Consider, for example, its 1958 ruling in Kent v. Dulles. In Kent, the Court chose to construe narrowly a statute that gave the Secretary of State discretion to issue or deny passports. Specifically, the Court held that the statute did not authorize the Secretary’s regulations denying passports to people affiliated with the Communist Party.The Court’s opinion, written by the great civil libertarian, Justice William O. Douglas, well describes delegation’s adverse impact on liberty. He wrote:

[T]he right of exit is a personal right included within the word “liberty” as used in the Fifth Amendment. If that “liberty” is to be regulated, it must be pursuant to the lawmaking functions of the Congress.... Where activities or enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them. We hesitate to find in this broad generalized power an authority to trench so heavily on the rights of the citizen

The cornerstone of the Court’s conclusion was that the legislative process offers a protection for liberty for which the administrative process is not an adequate substitute. Unfortunately, despite Kent’s broad wording, later Supreme Court decisions have not so strictly limited delegated lawmaking, even when it entrenches upon First Amendment rights.

I would now like to move from the abstract to the concrete, to describe three specific examples of the many actual situations where delegation has in fact undermined liberty, in particular, the precious freedom of speech that many consider an especially important aspect of liberty

The first example centers around the infamous gag rule issued by the Department of Health and Human Services (“HHS” in 1988. It prohibited employees of federally-funded family planning clinics from giving any information to their patients about abortion, even when the patients asked about it, and even when abortion was medically indicated — in other words, even when the woman’s health would be undermined by carrying the pregnancy to term. At that time, HHS could never have garnered the majorities in the House and the Senate that would have been needed to enact such a bar in statutory form. Undeterred, the HSS made the law itself. The ACLU challenged the gag rule all the way up to the Supreme Court, where it lost, five to four. A narrow majority of the Justices held that the gag rule did not violate any constitutional rights, neither the explicit right of free speech, nor the implicit right of reproductive freedom.

Moreover, departing from Kent v. Dulles, the Court also stretched to find statutory authorization for HHS’s regulatory ban on abortion information. The statute in question barred federally-funded family planning clinics from performing abortions.It certainly did not expressly authorize a ban on information about abortion. The Court reasoned, nevertheless, that the statute also did not expressly bar such a ban.As Justice Stevens noted in his dissent, “[i]n a society that abhors censorship and in which policy-makers have traditionally placed the highest value on the freedom to communicate, it is unrealistic to conclude that statutory authority to regulate conduct implicitly authorized the Executive to regulate speech.

Thanks to the majority’s opinion, those who opposed the ban on abortion information as violating free speech and reproductive freedom, not to mention on important public health policy grounds, could only protect these vital rights and interests by enacting a statute. Large bipartisan majorities in both houses did support a statutory repeal of the gag rule, but not the two-thirds supermajorities needed to override President Bush’s veto. The override failed by twelve votes.In this situation, accordingly, delegation created a cruel irony: the hurdles that had been built into the legislative process to protect liberty instead obstructed its protection.

For a second specific example of delegation’s anti-liberty impact, consider the regulations designed to curb smoking that were proposed by the Food and Drug Administration (“FDA” in 1995.^[ These regulations included restraints on tobacco advertising in the print media and on billboards,^[ raising very serious First Amendment problems.

Congress has not outlawed such advertising. Rather, the FDA claimed authority to enact the regulation under a broadly worded delegation.The FDA said that it would withdraw the proposed regulation only if Congress were to enact a similar statute.Therefore, even if both houses of Congress passed a bill barring FDA regulation of tobacco advertising, the presidential veto that would likely followand the probable lack of congressional supermajorities to override it would mean that the FDA could still regulate this speech. Once again, as in the gag rule situation, thanks to delegation, the hurdles that were built into the legislative process to protect liberty ironically end up obstructing its protection.