Consent of the Governed: A Constitutional Norm that the Court Should Substantially Enforce.

• Author: Schoenbrod, David

INTRODUCTION I. THE CONSENT-OF-THE-GOVERNED NORM A. The Norm's Provenance B. What the Original Norm Would Require of Congress II. THE IMPEDIMENTS TO JUDICIAL ENFORCEMENT THE ORIGINAL NORM A. The Impediments' Evolution B. The Impediments Today III. CONGRESS FLOUTS THE NORM A. Congress's Duty to Comply with the Norm to the Extent Practical B. Congress Could Comply with the Norm to a Substantial Extent C. How Flouting the Norm Benefits Legislators Politically D. How Flouting the Norm Harms the Legislators' Constituents IV. WHAT THE COURT SHOULD DO A. The Court's Job B. How the Court Could Do Its Job V. FAR-FETCHED RATIONALES FOR IGNORING THE NORM A. The Constitution Permits Congress to Leave Lawmaking to Agencies B. Even Early Congresses Ignored the Norm C. The Court Enforced the Norm in Only One Year of Hundreds D. The Constitution Was Amended to Eliminate the Norm E. Delegation Is Consistent with Consent of the Governed F. Canons of Statutory Construction Serve the Purpose of the Norm CONCLUSION INTRODUCTION

The Declaration of Independence proclaims that governments derive "their just powers from the consent of the governed." (1) To condition the federal government's powers upon such consent, the Constitution vested responsibility for exercising certain basic powers, including the power to make rules of private conduct, in the branch of government most directly accountable to the governed, Congress. (2) Members of Congress would then bear personal responsibility for the exercise of these legislative powers, and the governed could withhold consent by refusing to reelect these legislators. This arrangement was central to the compact that the Framers of the Constitution offered to the people. (3) As James Madison wrote in Federalist No. 51, "A dependence on the people is, no doubt, the primary control on the government...." (4)

That members of Congress bear such personal responsibility is a constitutional norm. As originally conceived, this norm required Congress to make all the rules of private conduct. Given the quantity of rules now being issued, it is hard to believe Congress could bring itself to make them all. (5) This limitation on Congress's ability to provide rules impedes the courts from fully enforcing the norm as originally conceived.

The Supreme Court has, however, erred in how it dealt with this impediment to judicial enforcement. It has held that Congress does not delegate its legislative powers so long as it states an "intelligible principle" to guide agency rulemaking. (6) Thus, though the norm as originally understood required Congress itself to make the rules of private conduct, the "intelligible principle" test allows Congress to leave such rulemaking to agencies so long as Congress says enough about the goals that the agency should pursue in making the rules. "Enough," however, is a question of degree. Judges would inevitably have difficulty in comparing the degree to which statutes guide agency rulemaking given the quite different topics of regulation. The test is therefore mush and, as such, judicially unmanageable and unenforceable. The upshot is that Congress can outsource responsibility for the laws by giving lip service to the vaguest of goals. (7)

Emblematic of this trivializing of the norm, some of the Justices' opinions began a half century ago to call it the "nondelegation doctrine." This label conceals the norm's vital consent-of-the-governed purpose, much as if equal protection of the laws was called the "nondifferentiation doctrine" or freedom of the press was called the "nonfiltering principle." (8)

The "nondelegation doctrine" label thus makes congressional responsibility sound like a technicality beloved only by cranks who oppose regulatory protection, although the overwhelming majority of the governed want such protection. In my own experience as an environmental advocate, I concluded that delegation often allows members of Congress to avoid blame for failing to deliver regulatory protection. Because the governed overwhelmingly want both protection and a Congress accountable for the rules of private conduct, I refer to the "consent-of-the-governed norm" rather than the "nondelegation doctrine." (9)

Yet, if the Court suddenly began enforcing the norm, even a less stringent version than the original norm, the reversal could cast a pall of doubt over the validity of a massive number of rules in the Code of Federal Regulation. It would take many years of litigation to determine the validity of these rules and years more, if not decades, for Congress to repair the resulting chinks in the regulatory system. Thus, our nation's reliance on massive delegation also impedes enforcement of the norm.

This Article argues that the Court could find a path through the impediments, including Congress's inability to provide all the needed rules and the present reliance on delegation, to enforce the norm to a substantial, though incomplete, extent. The path should begin by distinguishing between the original norm and the impediments to its full judicial enforcement. The distinction between the norm and the impediments to its judicial enforcement would make clear that, regardless of the inability of the Court to fully enforce the norm, members of Congress, having sworn to uphold the Constitution, (10) are honor bound to comply with the norm to the extent practical.

The Court would then be left with a constitutional duty to follow a path that enables it to enforce the norm to the extent permitted by the impediments to judicial enforcement. One step on this path would be to hold that the Court will strike down significant new regulations whose promulgation the legislative process has not approved. The idea that Congress should vote on significant new regulations has a bipartisan pedigree, yet both parties in Congress--each in its own way--assiduously avoid putting the idea into practice. (11) As Part IV.B will show, the Court can construct a test of the significance of regulations that is judicially manageable. The Court should forewarn Congress of its intention to take this step so that Congress could organize itself to vote on the promulgation of these significant new regulations. A subsequent step might be to force Congress to gradually take responsibility for the most important preexisting regulations.

Implicit in this approach is that impediments to judicial enforcement often require the Court to adopt tests that are less stringent than the norms themselves. Such underenforcement of constitutional norms may seem strange because the Court does not exactly advertise it, but it happens nonetheless. An example discussed in Part III.A is the equal protection norm, which forbids states from treating people unequally without fair reason. Impeded by concern for usurping the policymaking prerogatives of states in run-of-the-mill cases, the Court uses a deferential test allowing some violations of the norm. Part IV.A shows that the Court changes the tests it applies when it perceives better ways to skirt impediments to the judicial enforcement of constitutional norms. Thus, by "constitutional norm," I mean a requirement of the Constitution and by "test" I mean a standard tbat courts use to avoid impediments to full enforcement of a constitutional norm.

This Article's proposed approach to judicial enforcement would provide less complete compliance with the consent-ofthe-governed norm than the approach advocated in my earlier scholarship. (12) Since my earlier publications, I have had the benefit of private communications with sitting Justices from the left, right, and center--none still on the Court. These discussions gave me the impression that they would have liked to do more to enforce the norm, but given the impediments, they were unsure of how to do so. This Article responds to such concerns.

The Court's recent disposition of Gundy v. United States (13) suggests five Justices might be willing to revive judicial enforcement of the consent-of-the-governed norm. (14) All Justices should join in reviving the norm, especially now that the Presidency of Donald Trump has made starkly evident what was true before: legislators have long shirked their constitutional duty to take responsibility for the exercise of legislative powers and the result is often harm to their constituents. The Court's failure to enforce the norm has resulted in Congress and Presidents under both parties devising and imposing new ways of delegating power that allow incumbents to take credit for popular promises yet shift blame for unpopular consequences. (15) By so doing, the incumbents avoid the hard choices needed to deliver more effective regulatory protection and reduce pointless regulatory burdens. (16) Examples with deadly consequences for the governed are discussed in Part III.D. Such disgraceful legislative behavior, made possible by the Court's failure to enforce the norm, has contributed to loss of trust in government. (17) Trust in the federal government to do "the right thing" most of time fell from three-quarters of voters in 1964 to one-third in 1980 and only one-fifth in 2015, and one-sixth in 2019. (18)

Part I of this Article explains the original concept of the consent-of-the-governed norm. Part II discusses the evolving impediments to judicial enforcement of the norm. Part III shows that members of Congress should comply with the norm to a substantial extent, and their failure to do so causes grievous harm to their constituents. Part IV shows how the Court could and should substantially achieve the purpose of the norm. Part V argues that the many rationales for ignoring the norm are flimsy.

1. THE CONSENT-OF-THE-GOVERNED NORM

   1. The Norm's Provenance

      To require the consent of the governed, the Constitution empowered voters to sack the key policy makers. Article I vests "All legislative Powers herein granted," including making regulatory law, in a Congress, including a House of Representatives directly...