The Roberts Court's Overly-Aggressive and Constitutionally Unjustified Separation of Powers Jurisprudence

Children learn early on in their education that the United States Government is one of separated powers. What that means, however, is often not fully explicated by those throwing around the phrase. On the one hand, as James Madison powerfully said, the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Fair enough even today. But Madison also said that "unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." 

Thus, we have a government of separated powers to avoid tyranny and a system of shared powers so that the national government can act effectively and quickly when needed. There is often a tension between the desire for efficiency and the need to avoid tyranny. A classic example is we want the President to keep us safe from terrorist attacks but not in ways that give him so much power that he becomes a despot. 

Prior to the Roberts Court, the Supreme Court had only twice struck down laws on the basis that Congress unconstitutionally delegated power to the President, and both of the cases occurred during the Lochner Court era, when the justices aggressively vetoed how Congress could regulate the national economy. From 1937 to the Roberts Court, the non-delegation doctrine was not used a single time by the justices to invalidate a federal law. The separation of powers did not suffer during those approximately seventy years despite broad delegations of power from Congress to the President. The reason is simple: Congress cannot solve complicated economic, social, political, and environmental issues with specificity as those problems, and their needed solutions, constantly change and also require attention to detail. The Executive Branch has much more expertise and ability to handle the nuts and bolts of regulation than Congress, given how each branch has been structured from the very beginning. 

After the two outlier cases were decided, the Court quickly embraced a new rule for the validity of congressional delegations to the President: Congress must simply lay down an "intelligible principle" for the President and administrative agencies to use when executing the law. This test stood the test of time, and there was no good reason to change it. 

A more difficult and rigorous standard would cause enormous problems because, as Justice White once pointed out, the "controversial nature of many issues would prevent Congress from reaching agreement on many major problems if specificity were required in their enactments." Or, as Justice Kagan has put it, a robust non-delegation doctrine would make "most of Government unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

Before turning to how the libertarians on the Roberts Court have altered the non-delegation doctrine in cases involving "major questions," it is important to recognize that, as an original matter, there is no historical justification for any kind of judicially enforceable non-delegation doctrine with teeth. Professors Nick Bagley and Julian Mortenson have catalogued the many delegations of power from Congress to the President in the early days of the republic. Those delegations were common and gave the President substantial discretion over many important issues. I am not an originalist but the current Court claims to be. If the justices sincerely cared about original meaning, there would be only a minimal non-delegation doctrine like the one we had from 1937 to almost present day. I strongly recommend this persuasive article on the subject.

The only constitutional text that could plausibly support a strong non-delegation doctrine would be the language in Article I that gives "all legislative powers" to the Congress. But everyone agrees that delegations of power to the President to execute federal laws must first be enacted by Congress through the lawmaking procedures set forth in Article I, Section 7. Thus, when questions of non-delegation arise, it is only after Congress delegates power through its constitutionally recognized legislative authority. Congressional delegations of power to the President to implement broad policy goals do not place all legislative powers in one person or one branch of government. The power is shared by the Congress and the President, as the founders intended.

Having eliminated text and history as sources of a robust non-delegation doctrine, what is the basis of the new major questions doctrine that the Roberts Court has used on several occasions to strike down federal laws? In West Virginia v EPA, Chief Justice Roberts explained this limit as follows while invalidating an important environmental regulation the EPA was considering: 

In certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to clear congressional authorization for the power it claims.

This requirement that Congress must lay down super-clear and specific rules for agency implementation over "major questions," as noted above, is not justified by text or history. As one scholar has observed:

Rather than work within the framework courts have developed to determine whether to defer to agencies or not ... now the MQD begins to work as a very strong presumption that the agency loses. Courts are supposed to make an initial finding of whether something has vast political or economic implications — and if so, the agency loses. There’s no real or serious work to interpret the statute or see if the agency’s construction of that statute — which supports what it wants to do — makes sense. In other domains, we call this a “clear statement” rule. And when the MQD operates in that way, it does seem to stand in tension with the larger structure of contemporary admin law and statutory interpretation. 

The Court has only used the major questions doctrine a few times but expect the anti-regulatory justices on the Roberts Court to employ this non-textual, ahistorical tool often in the coming years. As I wrote two weeks after Trump was elected in 2016:

What does President-elect Trump care about the most? The answer is likely deregulation and freeing up businesses (including his own) from safety, environmental and other workplace rules imposed by the national (and possibly state) governments. Sadly, there is no shortage of judges and nationally known academics who might be willing to substantially dismantle even those regulations the GOP Congress wants to keep in effect or just doesn't have the time to repeal.

And if you don't believe me, here is MSNBC reporting on Don McGhan, who played a major role in the selection of federal judges during the Trump Presidency:

Former President Donald Trump's top lawyer put it bluntly when speaking at a conservative conference five years ago: The goal was to name judges who would help further the administration's deregulation agenda"There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin," White House counsel Don McGahn said onstage at the Conservative Political Action Conference in 2018. That plan is bearing fruit. The Supreme Court’s new nine-month term starts Monday, with major cases shaped by Trump-appointed judges that could hobble federal agencies already on the docket.

It is not just the major questions doctrine that the Roberts Court has used to limit the administrative state. In a series of uber-formalist decisions with the liberals usually dissenting, the Roberts Court has placed overly stringent requirements on how federal agencies are staffed and in what ways Congress may limit the President's ability to fire executive and independent agency officials (the Constitution is completely silent on the President's power to fire federal officers). Just this week the Court entertained a challenge to how an agency is funded, with several conservative Justices expressing sympathy for the sweeping attack. This post cannot analyze all those cases in detail but here is one representative example (there are many more).

In Seila Law v. CFPBthe Court held that Congress violated the Constitution when it created the structure of the important Consumer Protection Financial Bureau after the 2007 economic crisis. (This week's funding case also involves the CFPB.) In Seila Law, the libertarians on the Court held that the CFPB's structure violated the Constitution's separation of powers because the CFPB is an independent agency headed by a single Director who exercised substantial power but could be removed by the President only for good cause. The justices saved the statute by severing that allegedly offending provision and allowing the President to fire the Director for any reason. As the dissent pointed out in language applicable to most of the Roberts Court's separation of powers cases:

The text of the Constitution allows these common for-cause removal limits. Nothing in it speaks of removal. And it grants Congress authority to organize all the institutions of American governance, provided only that those arrangements allow the President to perform his own constitutionally assigned duties. Still more, the Framers’ choice to give the political branches wide discretion over administrative offices has played out through American history in ways that have settled the constitutional meaning. From the first, Congress debated and enacted measures to create spheres of administration—especially of financial affairs— detached from direct presidential control. As the years passed, and governance became ever more complicated, Congress continued to adopt and adapt such measures— confident it had latitude to do so under a Constitution meant to endure for ages to come.

So far the Court has agreed to hear three major separation of powers cases this term but there may be a few more added as the year goes on. Expect overturning of agency structures based on formalist rules that are not persuasively justified by text, history, or precedent. As McGhan, who helped put Justices Gorusch, Kavanaugh, and Barrett on the Court, made clear in the interview quoted above, the Roberts Court's administrative law agenda is clear: limit the administrative state and the ability of the Congress and the President working together to pass much-needed federal regulations to keep our country safe and economically strong.

The conservative majority's anti-regulatory agenda has nothing to do with what Justice Thomas repeatedly says are the only true sources of constitutional meaning: text and history. Instead, the Roberts Court wants to make it as difficult as possible for the federal government to meaningfully and efficiently regulate the national economy, something Congress simply cannot do without the substantial assistance of the Executive Branch. That job is hard enough and the Roberts Court, for no good constitutional reason, is making it harder and harder with every new decision undercutting, not enforcing, the separation of powers.