Inching Back toward the Rule of Law
Conservatives typically have one of two reactions to the headlines in left-leaning publications: Ninety percent of the time, we cringe at the presumption on display, but 10 percent of the time, we wish they were true.
“The Supreme Court’s Conservatives Are Ready to Take a Wrecking Ball to the Entire Federal Bureaucracy,” Slate ejaculates. If only it were so!
At issue is Gundy v. United States, a case in which Congress’s delegating a certain law-enforcement issue to the attorney general was challenged as unconstitutional. The law in question established the federal sex-offender registry and imposed prison time for failure to register. Congress left it to the attorney general to determine whether to apply the law retroactively to offenders who had been convicted before it was passed. Justices Thomas, Roberts, and Gorsuch argued in dissent that the constitutionality of such delegation needed reexamination; Justices Kagan, Ginsburg, Sotomayor, and Breyer agreed to uphold the law. Justice Kavanaugh had not yet joined the Court at the time the case was heard, and so took no part in it. Because the case was heard by only eight members of the Court, Justice Alito proceeded in an oddball manner and provided the fifth vote needed to uphold the law in spite of his broadly agreeing with the dissenters, expressing his hope that the full court would “reconsider the approach we have taken for the past 84 years” on the question of delegation. A clumsy showing all around.
Politics consists of excitement, high sentiment, and soaring declarations. Governance is boring. It consists of the little things, of the details, precisely of such questions as how much authority the elected legislature can delegate to the unelected and democratically unaccountable bureaucracy and what form that delegation can take. Justice Kagan argued that if the disputed “delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Justice Kagan is a practitioner of outcome-first/argument-after jurisprudence — she insisted during her confirmation hearing that there was no constitutional mandate for homosexual marriage and then discovered one at the first opportunity that presented itself — and is properly understood as a political actor rather than a legal one. In that, she exemplifies the worst of our legal institutions and the reason why so many Americans, myself included, trust them so little.
But Kagan is not wrong to affirm the legislature’s need to entrust the executive apparatus with certain discretionary questions about how a law is enforced. That is how governance works, and it is why we have an executive branch. It is difficult to get delegation just right. But convenience, no matter how needful, is not an unrestricted license. Congress cannot simply pass a law declaring “Americans shall have good health care, and the secretary of health and human services is hereby empowered to do what is necessary to make that happen.” A little more work is necessary. The so-called Affordable Care Act was a litany of “the secretary shalls.” Some of those delegated powers were very broad, for example the power to provide exemptions to certain parties (favored political constituencies, inevitably) from parts of the law. That is one of the reasons why it has failed, and why it remains controversial. That kind of delegation begins to resemble lawlessness, or at least arbitrariness in government, which amounts to much the same thing.
Americans tend to use the word “bureaucracy” as a pejorative. But a well-functioning bureaucracy is a thing of grace and wonder. Governments that do bureaucracy well — that achieve excellence in administration — are effective. That, and not sentimentality about “the people” and their wishes, much less vague notions of fairness, is what really separates effective governance from ineffective governance. Much of what is admirable about governance in Denmark or Switzerland has to do with institutional effectiveness. They have built high-functioning bureaucracies.
We have not.
Like a concave mirror, American bureaucracy reflects American pathologies and causes them to converge. American culture tends to hold administrative work (and service work generally) in low regard, if not in outright contempt, and the administrators in turn despise those they are supposed to serve, using the office rulebook not as a blueprint for getting things done but as an excuse for the opposite. If you have ever had the experience of, say, registering a car in person, it is obvious enough that the procedures and requirements involved have nothing to do with providing any benefit at all to owners of vehicles but rather are optimized for the convenience of the bureaucrats. Like about one-third of local police activity, it is tax-collection masquerading as a public-safety project. This is by no means limited to the public sector: Go to your doctor’s office and you’ll notice that he collects your health information by handing you a pencil, but collects his payment with one of the world’s most sophisticated arrays of information technology. This is not eccentricity — it is an internal value hierarchy made visible.
Better bureaucracies come from better administrative cultures, but they also come from such relatively easy things as giving bureaucracies less to do and restricting their activities to those areas in which they have real competence. The failure of the Affordable Care Act — and it is a failure on its own terms — is in part evidence of that.
And behind the failure of bureaucracy is the failure of legislation. The great political crisis of our times is not Donald Trump’s soggy nationalism or Alexandria Ocasio-Cortez’s callow socialism, but the abdication of Congress, an institution that has substituted self-importance for self-respect. Congress refuses to play its necessary constitutional role, because that requires a great deal of work, and most members of Congress are not willing to do it.
Congress always has been full of grifters, bush-league demagogues, and mediocrities who were too slow-witted to practice law and too lazy to sell real estate, but there was a time when it did its job, too. The legislature must write the laws and see to the overall business of lawmaking. Our current legislators have abandoned regular order and instead lurch from crisis to crisis and artificial emergency to artificial emergency, steadily ceding power to the power-hungry presidency and to the bureaucracies reporting to it. There is a case — and it is not merely rhetorical — that the American people no longer live under a government of laws of their own making. The business end of the federal law that most Americans deal with is the work of bureaucrats, not the work of lawmakers.
Justice Kagan may start to hear it, but there are more than a few Americans — mostly conservatives — who believe that a great deal of what we currently call government is in fact unconstitutional, who believe that what the Constitution establishes is a limited federal government of enumerated powers rather than a Napoleonic bureaucracy, and that substantive measures are needed to achieve at least a partial restoration of that constitutional order. At Slate, Mark Joseph Stern writes that Justice Gorsuch et al. are working toward a constitutional doctrine that would “dismantle landmark statutes protecting the environment, consumers, and employees,” which is only partly correct. The question of regulating air quality is separate from the question of whether the Clean Air Act is a well-constructed law that accords with our Constitution. To the political mind, the point is the “landmark statute.” But the point is clean air, honesty in business, safe workplaces, etc. The “landmark statutes” that may have to be revisited if Congress’s powers of delegation are brought more into line with the Constitution are not proper objects of veneration, even if strange and naïve cults have grown up around them. It is possible to believe that there should be workplace-safety regulations but not these workplace-safety regulations, generated in this way, enforced thus, etc.
Which is to say, what conservatives want is the rule of law, rather than imperial bureaucracy. That is not too much to ask out of Congress. It is not too much to ask out of the Supreme Court, either.
