The midterms are just a week away but Donald Trump is still making time to further his plans to take over the judiciary. His latest high-profile potential judicial pick, Office of Information and Regulatory Affairs head Neomi Rao, is a standout, not only because Trump met with her personally but because of how radical her views on regulation are.
Right now, Congress can use legislation to assign federal agencies any task that meets an “intelligible standard.” What that means in practice is that all Congress must do is say a delegated task is in the public interest. It’s such a low bar that only two statutes have failed that test, called non-delegation doctrine. It’s necessary that Congress delegate decision-making authority to agencies. If it couldn’t, agency rule-making and implementation would grind to a halt.
That’s a worst-case scenario for the country, but a stunning coup for certain conservatives. The best federal legislation isn’t worth the pixels it’s written with if executive agencies aren’t able to enforce it through regulations. Bye, bye, clean water and air; so long, consumer safety. No longer would Republicans have to challenge legislation, rules, and agency actions piecemeal; they’d have a legal weapon of mass legislative destruction.
Rao is a definite champion of this perversion of non-delegation doctrine. She thinks agencies should only be able to do the things that Congress explicitly spells out. That’s madness.
Delegation is integral. Agencies are full of people with expertise and agility, with the time to focus on the problems lawmakers name as such. They examine legislation’s aims and consider how they can best be accomplished; they respond to changing circumstances.
Agency experts tasked with reducing a certain type of polluting emission or tackling a predatory financial product need leeway to come up with the best way to do so. Members of Congress have neither the expertise nor the time to devise detailed solutions to the problems their legislation identifies for amelioration—much less continuously update laws’ fine print to meet evolving challenges.
How, exactly, does Rao manage to get to the conclusion that Congress should stop relying on executive agencies to, well, execute?
Her take is based on two assertions she claims come from the Constitution: Congress (1) must act “collectively,” not individually, and (2) cannot exercise executive power. Based on this, she claims that when Congress delegates decision-making power to agencies it’s creating potential for individual members of Congress to independently influence rule-making, exercising executive power.
Bad as Congress is now, imagine if Congress had to propose specific solutions to achieve policy aims. And that agencies would be constrained to doing only what Congress directs—which might mean implementing bad policy but could also mean failing to do anything at all.
Apparently Rao’s initial interview with Trump didn’t go that well. (Perhaps her thoughts on restricting executive power extend beyond agencies?) We can only hope that whatever deliberations have ensued slow down nominations.