The executive branch pushes the boundaries of the separation of powers
Ilya Somin: “I think there is bite, and the barking itself has some significance.” Photograph courtesy of the Antonin Scalia Law School.
The administration’s Office of Information and Regulatory Affairs reports that in 2017, federal agencies withdrew or delayed 1,579 planned regulatory actions, though many were long-dead wood.
And the president signed 14 legislative repeals of Obama-era rules through the Congressional Review Act, under which Congress has 60 legislative days to disapprove regulations—typically so-called midnight rules, adopted at the end of the previous president’s term. The CRA had been used only once previously.
Not only that, but at the outset of his administration Trump signed an executive order for agencies to repeal two regulations for every one they adopt. But the year-end OIRA report promises more for 2018: “Agencies plan to finalize three deregulatory actions for every new regulatory action.”
The president has added showmanship with public signings of executive orders, a gesture President Bill Clinton had used to the same effect—taking credit for what agencies had done, perhaps with suggestion from the president but, after all, actions by the agencies themselves.
McGahn spoke to the Federalist Society about pushing decision-making away from administrative agencies and back to the Congress, which, he says, “often punts the difficulty of lawmaking to the executive branch.”
Donald McGahn: “The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state.” Shutterstock
DEFERRING TO CHEVRON
Those who follow that purist libertarian-conservative view would end what they see as breaches of the separation of powers when courts give deference to administrative agencies under the Chevron doctrine and the delegation of legislative power to them.
This line of thinking is supported by Supreme Court Justices Clarence Thomas and Neil M. Gorsuch. Under Chevron, when a court finds a statute ambiguous and that it contains an express or implied delegation of authority to the agency, it defers to the agency’s interpretation.
Blackman favors an end to deference and delegation. He was encouraged that Trump has tried to restrain the very executive power that he himself enjoys, such as when he moved to rescind Obama’s pushing the boundaries of prosecutorial discretion with DACA.
“It has surprised me that Trump has taken steps to rein in his own authority,” Blackman says, believing that such decisions are for Congress to make.
“I like what McGahn has to say,” he continues. “That would be significant. I wait to see if he follows through on it.”
But such an effort likely won’t go far anytime soon because the Supreme Court “has largely accepted delegations,” says Cary Coglianese, who teaches both regulatory law and political science at the University of Pennsylvania.
McGahn knows that. His context was judicial nominations, while lauding Gorsuch and throwing shade at Chief Justice John G. Roberts Jr.—who left conservatives seething when he voted to uphold the Affordable Care Act. Speaking at the Conservative Political Action Conference in February, McGahn said Trump is targeting the “regulatory apparatus” with new judges. “There is a coherent plan here, where the judicial selection and the deregulatory effort are really the flip side of the same coin.”
The more realistic possibility for battle over the separation of powers would be changes in the Chevron doctrine, says Coglianese, who chairs the rulemaking committee of the Administrative Conference of the United States and formerly chaired the ABA Section of Administrative Law and Regulatory Practice’s committee on rulemaking.
The Trump administration, McGahn has said, wants courts to take harder looks at agencies’ authority and to move away from Chevron.
Hilarie Bass: “Without a healthy and functioning separation of powers, we run the very real risk of degenerating into tyranny.” Photograph by The Canadian Press Images/Michael Desjardins
A liking for the doctrine sometimes depends on which party is in power, though conservatives generally dislike it more, despite the fact that the underlying case had been a significant victory for the Reagan administration.Chevron v. Natural Resources Defense Council opinion had the effect of limiting the reach of the Environmental Protection Agency.
“Chevron seems to me relatively neutral between pro- or deregulatory action,” Coglianese says.
Notwithstanding the administration’s distaste for Chevron and a professed dislike for Congress ceding power to the presidency, agencies acting in accordance with the president’s wishes have been reinterpreting statutes in significant cases—saying the Obama administration had misinterpreted them.
The Department of Health and Human Services, for example, adopted two rules for the Affordable Care Act, allowing employers to drop coverage of contraception in health insurance plans if they have religious or moral objections to doing so.
A federal judge in Philadelphia issued a preliminary injunction in Pennsylvania v. Trump, saying that it went against the statute’s text, and that the rules would also permit an employer to claim a moral conviction that women don’t belong in the workplace in order to deny contraception coverage.
The reinterpretation of statutes is an easier way to make such a change. Trying to remake the rule itself would require the same lengthy process of notice and comment needed initially to implement it.
“On the one hand, McGahn is making a pitch that some in the conservative community have been making, that Chevron gives the executive too much authority,” says Coglianese, “and on the other hand knows this is the way to prevail.”
POWER-GRABBING
A president assertively increasing presidential powers is not new. In recent decades, those in the office have steadily pushed boundaries and expanded a president’s reach and impact, while at the same time Congress has ceded more and more power to the presidency.
President Obama, for example, frustrated that the Republican-controlled Congress failed to act on certain problems, put his own pen to work, issuing executive orders for so-called major rules—regulations measured by their impact on the economy—nearly double what his predecessor, President George W. Bush, had done. The result was sweeping change of a kind typically wrought through legislation in health care, financial industries, environmental protection, wages and workplace conditions, and equal rights, among others.
Obama also enjoyed a number of important legislative victories during his first two years, when Democrats controlled both the House and the Senate, passing the Affordable Care Act as well as legislation for economic stimulus, against hate crimes and opposing discrimination in women’s pay.
But Trump, even with Republican control of both houses of Congress, has had only one significant legislative effort with the Tax Cuts and Jobs Act of 2017.
Opponents called Obama the “imperial president.” A tag from President Trump’s critics remains a work in progress.
“Talking about the separation of powers inevitably requires talking about the politics of the moment,” says Josh Chafetz, a Cornell Law School professor who studies legislation and politics. “So, I have a necessarily political view of the separation of powers.”
Though acknowledging Congress’ long, steady practice of handing off power to the presidency, Chafetz argues that the legislative branch still has significant sway vis-à-vis the presidency. This happens more when a president is perceived as weak, as he believes Trump is, considering the fact that he entered office with relatively low approval ratings and has maintained them.
Correction
“Imbalance of Power,” April, should have identified Ilya Somin as being at the Antonin Scalia Law School.The Journal regrets the error.
