From Chevron to "Consent of the Governed": The Supreme Court should link Congress to its lawmaking duties.

• Author: Schoenbrod, David
• Position: LAW

The word is our: the Supreme Court is poised to roll back the Chevron doctrine. Set out in Chevron v. Natural Resources Defense Council (1984), the opinion states that when Congress has not "spoken directly to the precise question at issue," a court reviewing an agency action "may not substitute its own construction of a statutory provision for a reasonable interpretation made by ... the agency." Indeed, the agency may change its interpretation. That gives agencies more flexibility in making law by issuing regulations. The Court should ground any modification of Chevron on the constitutional norm that the "lawmakers" elected by the governed--that is, members of Congress--should take responsibility for the laws.

As a practical matter, this norm can be enforced only partially-there is only so far into the regulatory weeds that even the most diligent Congress can go. But partial enforcement is far preferable to no enforcement, which is where we are now. "Underenforced constitutional norms," to use University of Texas at Austin law professor Lawrence Sager's term, include the Fourteenth Amendment's equal protection clause and have an honored place in the constitutional firmament. The question is how to navigate various controversies in order to restore congressional responsibility to that firmament.

Controversy churns about the "administrative state"--agencies that de facto make laws and have been criticized for breaking free of democratic control. Controversy also churns about the composition of the Supreme Court, in part because some justices have said the Court's job includes enforcing the constitutional norm that law be made not by agencies but by an elected Congress. Both controversies shape the extent to which we live in a republic: a state controlled by the public rather than a political boss or an elite.

A PERSONAL ODYSSEY

A surprising light is thrown on all this by my experience long-ago in the 1970s, trying to enforce the Clean Air Act (CAA). I was an attorney for the Natural Resources Defense Council (NRDC), which was on the losing side in Chevron. The members of Congress who wrote the statute said the CAA would "protect health" from all pollutants with "an adequate margin of safety" by the end of the 1970s. But they left almost all the specifics of what that entails--which is to say, the real policymaking--to the Environmental Protection Agency and the states.

The legislation benefited plenty of lawyers on both the corporate and environmental side. Speaking personally, I won major lawsuits, got my name in the news, and received foundation grants. The corporate lawyers collected big fees. Yet, because Congress didn't do the hard work of lawmaking, tens of thousands of my clients died, as I explain below.

I left the NRDC and went into academia to understand why the CAA fell so short of the politicians' promise and to try to do something about it. Try I did. In articles and a book, Power Without Responsibility (Yale University Press, 1995), I argued that the courts should enforce the Constitution's requirement that lawmakers in Congress must vote for the laws and thereby shoulder personal responsibility for their consequences. Angry at what had happened to my clients, I argued that Congress could have--should have--made the law. However, at the time, I didn't sufficiently consider the practical and political difficulties of the Court holding unconstitutional statutes that failed to do so.

In other articles and a book, Saving Our Environment from Washington (Yale University Press, 2005), I pushed for Congress to adopt a statute that would put responsibility on the elected lawmakers by requiring them to vote on the major agency-made laws . In response to this and other arguments, Congress and President Bill Clinton approved the Congressional Review Act. The legislation was derived from my proposal, but with a perverse change.

The requirement that lawmakers vote on agency-made laws was turned into an option to vote on them, which they usually don't take. (See "Cleaning Out the Statutory Junk," Summer 2018.)

Despite these failures, a promising new path to success has recently appeared with the likely modification of the Chevron doctrine. By basing the modification on the constitutional norm, the Court could reveal that members of Congress fall far short of their duty under the Constitution to take responsibility for the laws. This would be politically powerful because polls show that the public strongly prefers Congress--rather than the administration--to make policy. That is why members of Congress cover up their shirking by pretending to want responsibility.

To point the way, this article explains the essence of our republic, why it has declined, and in particular how the Court got trapped into participating in the cover-up, and finally the way for the Court to extricate itself and our republic.

OUR REPUBLIC

With the Declaration of Independence having proclaimed that governments derive "their just powers from the consent of the governed," the Constitution sought to empower the people to sack key policymakers. Article I vests "all legislative powers herein granted" in a House of Representatives and a Senate legislating in tandem with a president and mandates roll call votes on controversial issues. That requires these officials to take personal responsibility for the hard choices. There could be "no taxation without representation" or, for that matter, regulation without representation. It is no wonder then that school civics courses once taught that it's Congress's job to make the laws and that its members are called "lawmakers."

Article I meant that Congress had to make the law itself rather than delegating that job to others. Debate at the Constitutional Convention proceeded on that premise. The power to regulate was understood at the beginning of the republic to be the power to make the rules of private conduct. In Federalist 75, Alexander Hamilton wrote, "The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society." Thus, to regulate, Congress must itself state the rules that bind the public in understandable terms, such as a rule limiting the amount of pollution from designated factories. The enacted rule would thus allow voters to hold their representatives responsible for the consequences of lawmaking. That serves the bedrock purpose of Article I.

In contrast, a...