On Jan. 31, more than three years after the people of the United Kingdom had voted for it, Britain left the European Union in a move nicknamed “Brexit.” The reasons for this are complex, but the clearest motive was outlined by Boris Johnson, a leader of the movement who is now the country’s prime minister.
In a speech during the Brexit campaign, Johnson noted that 60% of the laws passing through the British Parliament and becoming the law of the U.K. came from decisions made by the EU in Brussels.
“We are currently unable to exercise democratic control over such basic economic matters as our tax rates,” said Johnson. “We cannot control the EU budget … nor can we protect the U.K. taxpayer from the demands of the Eurozone countries for bailout funds … It is time to take back control and speak for freedom in Britain.”
Here, as in so many other areas, British politics seems to foreshadow what happens in the United States. Obviously, we are not subject to foreign control through a supranational organization such as the EU. But there are serious questions about the degree to which the American people are currently able to control the rules and regulations made by unelected officials in federal agencies — agencies which, because of their remarkable power and apparent immunity from popular control, are called the administrative state.
Without question, the representative republic set up by the framers of our Constitution offered protection against the loss of popular control. The Constitution vests all law-making power in Congress, a Senate and House of Representatives elected by and theoretically subject to the will and priorities of the American people.
But since the New Deal, and increasingly in recent years, this system does not appear to be working as designed. Instead of making the difficult political decisions for society, who is benefited by and who pays the price for new legislation, Congress has been enacting laws that simply set goals for the agencies of the administrative state. This delegates unlimited authority to these agencies, but it insulates members of Congress from accountability for the political costs of making these controversial decisions.
In addition, under a key 1984 Supreme Court ruling, Chevron v. U.S., lower federal courts were directed to defer to the interpretations of administrative state agencies themselves about the authorities they were granted by Congress.
When broadly worded delegations of statutory authority are combined with court deference to agency views of their rule-making power, it should be no surprise that the agencies of the administrative state can expand their jurisdictions to matters Congress never contemplated. Executive agencies, then, rather than Congress, have been able to make the rules under which everyone must live.
In other words, the people are in very much the same position in relation to their government as the people of Britain were before they voted for and achieved a separation from the EU. As in Britain, people bound by the rules flowing from remote bureaucracies have little ability to affect the scope of these rules. As in Britain, this will eventually give rise to dangerous questions about the legitimacy of the rules.
Of course, the remedy in our constitutional system must be entirely different from what the British did, but there is a remedy. It’s a return to the original constitutional structure in which Congress — when it provides authority to the agencies of the executive branch — places limits on the scope of these powers. At the same time, the courts must be the key interpreters of what powers Congress intended to confer and should not be required to defer to agencies’ views of how much authority they have been given.
There is a way to bring this about. It’s called the nondelegation doctrine. This constitutional approach has not been invoked by the Supreme Court since 1935, but with five members of the Court now avowing that they favor the original meaning of the Constitution, it is a reasonable prospect.
Under this approach, the judiciary would strike down as unconstitutional any law that delegates excessive or unlimited authority to an executive agency. This would require Congress, in performing its legislative function, to place limits on the scope of the statutory authority it is granting. The judiciary, in turn, rather than deferring to the agencies’ views, will independently test whether executive agencies are remaining within these limits.
There will certainly be strong opposition to this approach from those who favor the expansive government powers currently exercised by administrative state agencies. But without a change in its current direction, the U.S. government is headed toward a structure not very different in overall effect from what the British people overturned with their Brexit votes.
It’s time either to start that process or resign ourselves to living in a governmental system the framers would not recognize.
Peter J. Wallison is a senior fellow at the American Enterprise Institute. His most recent book is Judicial Fortitude: The Last Chance to Rein In the Administrative State (Encounter 2018).
