Another Day In Government Metastasization
/When you get right down to it, our federal Constitution isn't really very complicated. The government as a whole has only such powers as are defined by a limited list (Article I, Section 8), and even those powers are exercised by three branches having separate functions. "All legislative Powers" are "vested in a Congress" (Article I, Section 1); "[t]he executive Power" is "vested in a President" (Article II, Section 1); and "[t]he judicial Power" is vested in "one supreme Court and in such inferior Courts as Congress may from time to time ordain and establish" (Article III, Section 1). And then there's the so-called "power of the purse," located in Article I, Section 9: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . ."
Or you can go with the alternative view, which is that there's a vast administrative state out there, some of it kind of reporting to the President and some not, and they can just do whatever the hell they want. After all, they're the experts, and they know much better than the mere people what is best for them. Today this second view has been adopted by around 98% of the legal academy, as well as by four of the current eight justices of the Supreme Court. (Soon to be five? We'll see.)
But, you ask, the Constitution is right there for all to see and is so simple in its structure and commands; is it really so easy just to evade it entirely? The answer is that today the world of legal and constitutional scholarship is characterized by such a pervasive and powerful groupthink that it is no longer necessary to make arguments that even pass the proverbial "straight-face test." Of course the agencies have to be able to do whatever they want! Otherwise all hell will break loose! (Or something like that.)
For today's first example, consider the decision today from the federal District Court for the District of Columbia (Judge Rosemary Collyer) in United States House of Representatives v. Burwell. I cannot find a copy of the full text of the decision online, but here are reports from The Hill and from Fox News. This is the case where Republicans in the House have sued the executive to enjoin it from spending unappropriated money to pay to health insurance companies to save them from incurring big losses under Obamacare. Oh, the government has gone right ahead and spent some tens of billions of dollars on this purpose over the past few years, even though there has been no appropriation of money for the purpose by the Congress.
But what about Article I, Section 9 of the Constitution? The government claimed that the appropriation could be found in Section 1402 of the Obamacare act, but here is that section, and you can look for yourself -- there's no appropriation there. Lacking any helpful text in the statute, the government then argued that the appropriation could be "inferred," outside the text of the law. How? Because without the appropriation the law just wouldn't "work" as intended, or something like that. From Judge Collyer's opinion:
Such an appropriation cannot be inferred. None of Secretaries’ extra-textual arguments — whether based on economics, ‘unintended’ results, or legislative history — is persuasive.
As you can see from this, the government's argument really was not very much different from "we have to be able to do whatever we want, or else all hell will break loose."
You probably are now wondering how press secretary Josh Earnest could possibly spin this one. Here:
This suit represents the first time in our nation's history that Congress has been permitted to sue the executive branch over a disagreement about how to interpret a statute.
OK, but is there any other prior example of a President just going ahead and spending tens of billions of dollars of unappropriated money in defiance of the Constitution? And is this President's position really that he can just do whatever the hell he wants and spend whatever unappropriated money he wants, in the face of Article I, Section 9, and there's nothing that anybody can do about it? Earnest did not answer those questions.
But Judge Collyer is just one lonely District Judge, and a GW Bush appointee at that. It will be a couple of years before we see how her decision fares in the DC Circuit (now firmly in control of Obama appointees) and then the Supreme Court. Oh, and meanwhile, this being the government, the injunction granted by Judge Collyer does not take effect, and the government gets to just go ahead and spend tens of billions more of unappropriated money while we wait for the final decision. If you were trustee of a trust and you spent money like this, when you lost in the end you would have to refund it all personally. Don't count on that happening to Mr. Obama when this saga ends.
And further in the category of "the government can do whatever the hell it wants," we have the famous doctrine known as "Chevron deference." This doctrine, arising out of a 1984 Supreme Court decision by that name, says that the courts should in nearly all cases go along with the interpretation of a statute put forth by the federal agency that is applying the statute. I guess the doctrine looked like a good idea to the Supreme Court at the time, especially as we were heading into the era of impossibly-complex multi-hundred-page statutes. After all, the agencies are the experts! They are neutral and a-political, and not at all out for their own aggrandizement! Right? Somehow it never occurred to the naifs at the Supreme Court that every single "interpretation" of a statute by an agency will turn out to be in the direction of increasing the agency's power and prerogatives. And how to reconcile the Chevron doctrine with the fact that interpretation of statutes is the very core of the judicial power, vested in the courts, and not the agencies, by the Constitution? You will not find that question addressed in the Chevron decision.
So you'll be glad to learn that the Harvard Law Review is just out with a major piece by Harvard Professor Adrian Vermeule explaining to all why it just doesn't make sense to have any approach to administrative law other than that agencies get to interpret their own statutes and further, to set their own procedures for adjudicating cases. (Wait -- adjudicating cases? Isn't "the" judicial power of the United States vested in the Article III courts? Oh, you are so naive!) Excerpt:
[D]evelopments in the law since Mathews was decided in 1976 support a reduced due process role for courts. Those developments include: (1) the “very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure,” announced by the Supreme Court in Vermont Yankee, two years after Mathews, and recently reaffirmed in Perez v. Mortgage Bankers; (2) the watershed of Chevron, decided in 1984, and its key premises that, on grounds of both expertise and accountability, agencies are better positioned than courts to interpret governing statutes; (3) the growing body of caselaw that affords agencies Chevron deference even on procedural provisions in organic statutes — a body of caselaw that has witnessed agencies taking charge of the Mathews calculus, and that squarely rejects due process counterarguments.
The article goes on for 40 pages or so, but you get the gist: agencies can do whatever the hell they want. You might think that the Constitution or their statute constrains them, but then they get to "interpret" their statute (always in favor of themselves and against you), and then they get to try the case before their own in-house judge, and then they get to set the procedures in that case, and then when you lose your first appeal is within the agency itself, and then your second appeal is also within the agency itself, and then you finally get an appeal to the court, but it will give deference to the agency on everything from what the statute means to the procedures to the factual findings against you made by an employee of the agency. In what way is this meaningfully different from "the agency can do whatever the hell it wants"? Well, thank God we have big-time Harvard professors like Vermuele to explain to all the little people why this is all just fine!
UPDATE, May 13: John Hinderaker at PowerLine posts a link to Judge Collyer's opinion here.