Gordon L. Weil
This country still struggles to achieve popular control of government.
In Revolutionary terms, the king would give way to the Congress. Nice idea, but it’s not working. What’s even worse, people are growing used to an extremely powerful executive.
The idea behind the Constitution was to prevent the chief executive from controlling everything and instead to give the ultimate power to the people’s representatives. Legislative bodies would make the laws and presidents or governors would carry them out.
This idea largely failed because of Congress. From the Civil War onward, it began passing some of its powers to the president and his executive branch agencies. Congress might normally set national policy, but it would leave the details to the executive. As issues seemed to become more complex, Congress increasingly left the hard legislative work to “experts.”
Complaints would arise about decisions made by expert regulators, but the Supreme Court deferred to their special knowledge. It would not overrule their judgments on the facts unless they were completely unreasonable. The focus of much day-to-day lawmaking shifted to executive agencies and away from elected officials, responsible to the people.
This week, the Supreme Court has heard a case that makes the point. The SEC, the federal securities regulator, charged that a major fund investor had fraudulently overvalued his assets. He faced a trial before an administrative law judge, not a court, who ruled against him. He was found guilty, heavily fined and denied the right to work in investments. The SEC approved.
Whatever his guilt or innocence, the investor was “tried” by an official who reported to the agency making the charges. Congress had given the SEC the right to do that, stripping itself and the courts of their powers. The Court is now considering if Congress could create this system.
In another major case that will soon be heard, the Court will decide who pays for observers that must be carried on some boats to discourage overfishing. Congress failed to set a rule, but a federal agency came up with an interpretation that makes the boat owner pay. A lower court deferred to the regulatory body. The Court will decide if the agency can set such broad policy.
The Supreme Court has begun to see if it can restore the concept that Congress makes the laws and cannot give the executive branch free rein. Last year, the conservative Court majority departed from its traditional deference to regulators and ruled that Congress had not given the Environmental Protection Agency certain Clean Air Act authority.
Even more significantly, the Court’s conservative majority found that Congress had not given President Biden’s administration the authority to eliminate about $430 billion in student debt. Political views aside, it was difficult to imagine how any president could spend that kind of money without legislative approval.
Right now, Maine faces the same kind of situation. The tragic mass shooting in Lewiston merits a review allowing state government to learn if it could have been prevented and to ensure it would not happen again.
Governor Mills appointed a blue ribbon panel of qualified and respected members of the Maine community. As a creation of the governor, this body has no powers of action. It can review, report, and recommend, though technically its report goes only to the governor.
No sooner had the group assembled than it asked the Legislature for subpoena powers. If the Legislature agreed, it would be turning the governor’s commission into an agency with governmental powers. Yet lawmakers had no role in deciding on the commission, its scope, its budget and its members. The request was a classic blank check from the Legislature to the governor.
The purposes of the commission are appropriate and necessary. The membership is impressive. Yet their first act requested a change in status without formal legislative approval of their creation. They want subpoena power without having encountered any opposition from anyone in providing information. It looks like they have already decided to assess fault for the shooting.
People’s confidence in government is undermined by the kind of paternalism implied by allowing executive branch officials too much power. Legislators may say they favor broad policies, but they leave the laws people must accept and follow to people outside of the legislative branch, who are not held accountable by voters.
The answer might be to restore both the power of the Congress and the Legislature and public confidence by passing simple laws that allow few exceptions and are specific in their terms. Affected parties will complain about losing the treatment they need, almost always to create jobs. They need time to adjust. The latest tax law changes showed its possible.
The problem isn’t about the “administrative state.” It’s about the failure of legislators to do their constitutional job.
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