America has witnessed a massive shift in government authority, says George Washington University law professor Jonathan Turley—one that "has occurred without a national debate and certainly not a national vote." That shift has led to the de facto creation of a "fourth branch of government containing legislative, executive and judicial components but relatively little direct public influence."
Turley made those remarks in recent testimony before a House Judiciary subcommittee. His talk waded deeply into the weeds of legal history and precedent, but the upshot was this: By failing to rein in regulatory agencies when they overstep their bounds, the Supreme Court and Congress have allowed those agencies not merely to administer law, but to create it—and run roughshod over the public in the process.
It's hard to argue with the numbers: In one recent year alone, Congress passed 138 laws—while federal agencies finalized 2,926 rules. Federal judges conduct about 95,000 trials a year, but federal agencies conduct nearly 1 million. Put all that together and you have a situation in which one branch of government, the executive, is arrogating to itself the powers of the other two.
All of this has happened thanks largely to a 1984 Supreme Court case called Chevron. The Reagan administration chose to relax some air-quality regulations, and the Natural Resources Defense Council challenged the decision in court. The Supreme Court sided with the Environmental Protection Agency. It did so for commendable reasons: to avoid turning the courts themselves into policy-making bodies. Rather than decide whether the EPA was right or wrong, the high court deferred to the agency. This is judicial modesty.
But modesty can go too far. Federal law (the Administrative Procedure Act) requires courts to "hold unlawful" agency actions that are arbitrary or capricious, that violate the Constitution, or that exceed their authority. Turley and others contend Chevron has tilted the scales too far. He says it is "the administrative equivalent of Marbury v. Madison"—except that, unlike Marbury, it has made executive agencies rather than the courts the final arbiter of their own behavior.
The very day Turley was making that case, the Justice Department was taking steps to prove him right. It sent a "Dear Colleague" letter to state courts in all 50 states lecturing them about the harm done by the imposition of fines and fees on poor defendants, especially when those fines and fees become a source of revenue for local governments.
The letter laid out seven principles to guide the behavior of courts, and urged court officials "to review court rules and procedures within your jurisdiction to ensure that they comply with due process, equal protection, and sound public policy."
Let's stipulate right away that such practices are highly dubious and ripe for reform. That said, on what authority does an arm of the executive branch presume to dictate the activity of the judiciary—not only with regard to issues that are constitutional, such as due process and equal protection, but also with regard to those that aren't, such as public policy?
If you're sympathetic to the Justice Department's concerns—and all good people should be—it might be helpful to turn the circumstances around. Imagine for a moment that judges took it upon themselves to instruct the Justice Department about what sort of cases it ought to bring, based on the judges' opinions about "sound public policy." Whatever the merits of the argument, it's clear the judges would have no business making it.
Even more pernicious abuse has come from the Education Department, beginning with a 2011 "Dear Colleague" letter to colleges and universities that shifted the burden of proof in sexual harassment cases. Schools across the country promptly followed the directive, even though there have been serious questions about the legal basis for issuing the letter in the first place.
When pressed by Sen. Jim Lankford (R-Okla.) of Oklahoma, the Education Department offered a response that was so non-responsive Hans Bader, a former Office of Civil Rights attorney himself who has written extensively on the issue, concluded that it "simply repeated the same question-begging rationalization it gave (before)" and failed to "address the criticisms of its letter made by many lawyers and law professors."
Those law professors include 16 from the University of Pennsylvania. In an open letter last year, they criticized the Education Department not only for violating basic standards of due process, but also because "the federal government has sidestepped the usual procedures for making law."
One final example—unrelated to Chevron, but indicative of the broader problem: Earlier this month the U.S. military killed about 150 people at an al-Shabab training camp in Somalia. The Obama administration justified the attack by citing the 15-year-old Authorization for Use of Military Force—against those who were responsible for the attacks on 9/11. Al-Shabab emerged from the Somali Council of Islamic Courts that took over southern Somalia… in 2006. In 585 pages, the 9/11 Commission Report mentions al-Shabab not even once.
The Constitution gives to Congress the power to declare war—a point Virginia Sen. Tim Kaine (D) has pressed relentlessly—just as it gives to Congress the power to write the laws. These days the Executive Branch is doing both far more than the Founders intended—or the public knows. Those who do so are unelected, unaccountable, and unconstrained. For any democratic system, that is most unhealthy.
This column originally appeared in the Richmond Times-Dispatch.
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