Somewhat better rules for the administrative state

Read together, the court's immigration and climate change decisions constitute a small step toward reinvigorating the constitutional authority of both the president and Congress

On the last day of the most recent term of the U.S. Supreme Court, it issued two opinions regarding the reach of the administrative state.

In one, the court found that the Biden administration could repeal the Remain in Mexico policy instituted by the Trump administration, under which asylum seekers had to wait in that country pending an admissions hearing.

In the other, the court found that the Environmental Protection Agency did not have the authority to dictate the energy mix of electricity production throughout the country, directing it away from fossil fuels and toward renewables.

There is an unfortunate practice all across the political spectrum of reacting to court decisions based upon support or opposition to the effect they have on policy, rather than the legal judgments actually at issue.

The left generally opposes the Remain in Mexico policy and supports the EPA engaging in climate change regulation. So, from that quarter, the Remain in Mexico decision was applauded and the EPA decision jeered.

The right generally supports the Remain in Mexico policy and opposes climate change regulation by the EPA. So it jeered the former decision and applauded the latter.

In reality, the court was grappling with the rules within which the administrative state must operate under our constitutional order. The two decisions have to be considered together. And taken together, they constitute a modest step toward reinvigorating the constitutional authority of both Congress and the president.

Under the Constitution, legislative authority is vested solely in Congress. In the EPA case, the court found that the agency had no clear mandate from Congress to dictate the energy mix of electricity generation to reduce the risks and consequences of climate change.

Given the repeated attempts and failures of Congress to adopt comprehensive climate change legislation, that should be unarguable. The EPA was asserting authority from part of the current Clean Air Act designed to ensure that existing sources were using the best, practically available pollution control technology. That cannot credibly be stretched to include the ability to dictate energy mixes willy-nilly.

The court wasn’t saying that there shouldn’t be comprehensive climate change regulation. Only that whether to have it is a legislative decision Congress has not yet clearly answered in the affirmative.

Under the Constitution, decisions about executing the law reside with the president. Yet the Administrative Procedure Act has been weaponized by both sides. When Donald Trump was president, Democratic state AGs sued to thwart his policy decisions through procedural challenges that the way they were adopted violated the APA. Now that Joe Biden is president, Republican state AGs are doing the same.

This is turning the administrative state into the paralytic state. There should be clear authority from Congress for the executive to act. But where there is clear authority, the executive should be able to act expeditiously. And for action within the writ of the executive, one president shouldn’t be bound or hamstrung by the decisions of predecessors.

Congress has clearly given the executive branch the authority to order asylum seekers appearing at the border to remain in the country whence they traversed pending an admissions hearing. Trump was within his authority in ordering that asylum seekers remain in Mexico and Biden was within his authority rescinding it.

The U.S. Supreme Court wasn’t opining whether the policy was good or bad. Only that the decision was Biden’s to make.

Requiring more express authority for administrative action, but giving greater leeway for presidential authority when it has been given, is a step in the right direction in establishing the reach of the administrative state in our constitutional order. But, given the specifics of the decisions, not an ideally decisive one.

In the EPA case, the court found that there needs to be clear congressional authority when an agency asserts extraordinary powers with far-reaching consequences. The court’s majority calls it the “major questions doctrine.”

There is no such constitutional distinction. The Constitution vests all legislative power, over matters large and small, in Congress. Administrative agencies should have no greater leeway to stretch their authority based upon what will inevitably be a subjective judgment by courts as to whether it constitutes a major question. And while a particular regulation may not have significant economy-wide repercussions, it can still have substantial consequences for those subject to it.

The court, and particularly Chief Justice John Roberts, has also been inconsistent regarding the extent to which the Administrative Procedure Act can be weaponized to thwart executive action. The Trump administration tried to end the DACA program providing renewable legal status for dreamers in nearly precisely the same way the Biden administration ended the Remain in Mexico policy.

In both cases, the policy was established by the issuance of a memorandum and sought to be terminated by the issuance of a memorandum. And, after an APA challenge, in both cases a revised memorandum was issued.

Roberts found that the Trump administration’s revised memorandum violated the APA while the Biden administration’s revised memorandum did not. The pettifogging distinction was that Biden’s second memorandum purported to replace the previous one, while the Trump administration’s second memorandum only purported to expand upon its initial one.

So, not the full declaration and delineation of respective congressional and presidential authority ideally needed. But a step in the right direction nevertheless.

Reach Robb at robtrobb@gmail.com.