The paradox of administrative preemption.

• Author: Rubenstein, David S.
• Position: III. The 'Contingent Concessions' for Modern Government through VI. Conclusion, with footnotes, p. 297-335

3. THE "CONTINGENT CONCESSIONS" FOR MODERN GOVERNMENT

   This Part provides a stylized account of how the Framers' structural strategies of separation of powers and federalism have been repackaged to accommodate the modern administrative state. I employ the term "administructuralism" to capture this transformation. My purpose is not to argue that the resulting system is unconstitutional--just that it is considerably different than what the framing generation intended or understood. (155)

   Section A briefly describes the engines of change behind administructuralism. Sections B and C describe the structural "concessions" made for modern government along both the separation of powers and federalism dimensions, respectively. Critically, however, the account advanced here understands these structural concessions as being "contingent" on the legitimating theories offered by the Court. on this telling, administructuralism reflects a series of "contingent concessions" made for modern government.

   1. Restructuring

      The Framers fully appreciated that the Constitution's parchment boundaries would prove elusive and dynamic. (156) This indeterminacy was famously capitalized upon in the New Deal era. (157) The New Deal reformers perceived separated federal power as an untoward drag on the federal government's ability to address social and economic problems. (158) At the same time, states had proven impotent to effectively handle the troubles of the day; indeed, states were largely perceived as a major source of blame. (159) Competition among states was perceived to generate "race-to-the-bottom" pathologies that disadvantaged the needy and prevented the type of coordinated, centralized action believed necessary to restore the general welfare. (160)

      In the minds of the New Dealers, the limits on federal power were too great--or, what is the same to say, federal power was not strong enough. These perceptions fueled a progressive movement for institutional change along both the separation of powers and federalism dimensions. (161) Though treated separately below, the animating force of change was mostly unitary: The governmental inefficiencies formerly embraced as a cog against tyranny could not withstand the inertial tide of change. (162)

   2. Separation of Powers: Contingent Concessions

      Although a number of structural concessions have been made for modern government along the horizontal dimension, this section directs attention to the one most central here: congressional delegation of policymaking power to federal agencies. (163)

      The Framers foresaw Congress as the most dangerous branch. (164) As earlier noted, (165) the federal lawmaking requirements of bicameralism and presentment were designed to suppress congressional overreaching by disabling Congress from changing public policy too easily or often. (166) But what the Framers did not anticipate was the relative ease by which Congress could bypass the legislative dam by delegating decisions to the Executive branch. (167) Nor, for that matter, could the Framers anticipate that Congress would ever much want to cede power to its Executive rival. (168)

      Today, however, Congress has a long supply of reasons to delegate policy decisions to agencies--even, and sometimes especially, in regard to important matters. (169) For instance, Congress may delegate (1) to overcome informational costs and lack of resources; (170) (2) to avoid political responsibility; (171) (3) to avoid political gridlock; (172) or (4) out of recognition that, as compared to Congress, agencies may produce better decisions on account of administrative expertise, efficiency, and flexibility to respond to changing conditions. (173)

      Yet none of these are constitutional reasons. The conventional account thus holds that Congress may not lawfully delegate the legislative power. (174) That is generally believed to be so because Article I vests "all legislative" power in Congress, Article II does not vest similar power in the Executive, and there would be little point to the Constitution's bicameralism and presentment requirements if federal lawmaking could be achieved by other means. (175)

      The great puzzle of modern government, then, is how to square the proscription against Congress's delegation with the fact that it massively does so. (176) Some conceptual repackaging is necessary, and a number of academic theories have been advanced. (177) The Court's approach to this puzzle, however, has been to construe "legislative power" narrowly to mean the exercise of unconstrained discretion in making rules. (178) Thus, under the Court's familiar articulation, no "forbidden delegation of legislative power" occurs if Congress provides an "intelligible principle" in the statute to guide agency discretion. (179)

      Instructively, "virtually anything counts as an 'intelligible principle.'" (180) The post-New Deal Court has yet to overrule Congress on delegation grounds, even in the face of sweepingly broad statutory permissions for agencies to make binding rules "in the public interest." (181) As Gary Lawson precipitously explains, "[t]he rationale for [the Court's] virtually complete abandonment of the nondelegation principle is simple: the Court believes--possibly correctly--that the modern administrative state could not function if Congress were actually required to make a significant percentage of the fundamental policy decisions." (182) Faced with choosing between the original and modern structures of government, "the Court has had no difficulty making the choice" in favor of the latter. (183)

      As a result, Congress is able to pass far more law than it otherwise would or could. It is vastly easier for the collective Congress to agree on a goal--for example, clean the air or create a safe workplace--than it is to agree on the details. Yet the details are often the most critical aspects of law, or at least the most contentious, because it is there that most rights and duties are found. Congress's ability to delegate those decisions en masse loosens lawmaking's procedural grip, and, with it, the representational accountability, deliberation, inertial resistance, and factional competition those procedures were designed to advance.

      None of this is to insist that congressional delegations are unconstitutional. (184) That judgment, again, depends mightily (if not entirely) on one's preferred theory of constitutional interpretation. (185)

      Still, the foregoing discussion sets the stage for a designedly more modest claim: The Court's abstention in policing the lawmaking divide is a structural concession made for modern government. Indeed, it is a concessional fountainhead. As further developed below, (186) congressional delegation of broad and undefined discretionary power has broad implications for federalism too. (187)

      Critically, however, the Court's nondelegation doctrine comes with strings attached. First, the Court stubbornly clings to the theory of nondelegation: Congress cannot delegate lawmaking, (188) and, relatedly, agencies cannot make Law. (189) These principles were recently reified in City of Arlington v. FCC. (190) Writing for the majority, Justice Scalia issued a reminder that "[a]gencies make rules ... [that] take 'legislative' ... forms, but they are exercises of--indeed, under our constitutional structure they must be exercises of--the 'executive Power.'" (191) Occasionally, a Justice or two suggests abandoning this theory. Justice Stevens's concurring opinion in Whitman v. American Trucking Ass'n is an example, where he urged the Court to stop "pretend[ing]" that Congress's delegation of rulemaking authority is not "legislative power." (192) But this judicial view is rarely aired and only in concurring and dissenting opinions when it is. I suspect that is because judicial candor about Congress's delegation of lawmaking might also reopen questions about the constitutionality of that practice. To date, that tradeoff is not one the Court has been willing to make. Moreover, as Kathryn Watts has recently argued, a "Candid Approach" to delegation would also mean revisiting a host of administrative law doctrines built over time around the nondelegation maxim. (193)

      The second contingency surrounding delegation is that agencies will be adequately checked through political and judicial oversight. (194) As Cynthia Farina aptly explains, the administrative state "became constitutionally tenable because the Court's vision of separation of powers evolved from the simple (but constraining) proposition that divided powers must not be commingled, to the more flexible (but far more complicated) proposition that power may be transferred so long as it will be adequately controlled." (195) Though not the Framers' version, the idea of keeping agencies in check and the government in "balance" arguably remains faithful to the spirit of separated powers.

   3. Federalism: Contingent Concessions

      This section now turns to the "contingent concessions" along the federalism dimension. As earlier noted, a principal feature of the Framers' strategy was to retain states as autonomous power centers. In doing so, they hoped to provide more opportunities for citizen participation in government, to enhance political choice, and to offer a competing locus of power to check and compete with the federal government. (196) Though more than one way exists to promote these forms of political liberty, (197) the methods selected by the Framers were structural: Apart from dividing federal power to encumber federal lawmaking, the substantive scope of federal power was enumerated, and thereby limited.

      Today, however, the enumerated-powers principle hardly restrains Congress's substantive power. Over time, Congress has pervaded almost every significant aspect of our social and economic order. (198) And the Court, for its part, has done virtually nothing to curb this tendency. (199) To be sure, the Court on occasion has sanctioned Congress's use of certain...