Constitutional Opinions: Keep on Truckin
Rabkin, Jeremy
CONST TUT 0 A OPINIONS by Jeremy Rabkin Keep on Truckin' A court vests legislative powers in a regulatory agency. A mericans love gadgets. Yet some that seem wonderful at the outset, such as...
...In the most interesting part of the decision, the court held that the EPA had not adequately explained how it set pollution standards...
...economy toward compliance with the Kyoto treaty aiming to avert global warning by cutting back on "greenhouse gas emissions" (produced by burning of fossil fuels...
...Congress did not provide adequate guidance in the statute, the court complained, and the EPA's explanation did not do enough to clarify the relevant standards or criteria for regulatory action...
...One of the new regulations at issue in this case deals with "particulate matter" put into the air by combustion...
...That this "case" was actually a consolidation of more than fifty separate challenges to the same regulations gives an idea of the stakes...
...Back in 1968, the Warren court ruled that residency requirements for welfare denied indigent people the right to travel...
...Supreme Court...
...But the various challengers surely thought the money well spent, since the EPA's new standards will constrain commercial activity across the country...
...Saenz v. Roe...
...When judges go after new conceptual gadgets, it usually takes years to determine their value...
...Meanwhile, the Supreme Court wheeled out a new gadget of its own in Instead of demanding that Congress do better, the court told the EPA to offer more explanation...
...This doctrine has not been seriously applied since the 193o's — which is why so many regulatory agencies are licensedto regulate on such vague and open-ended charters...
...There is one distinctive feature of the clause, however, that may well have caught the court's attention...
...Three state governments challenged the EPA's new rules as excessively severe, as did truckers and other small plaintiffs...
...The court struck down a California law which required that newcomers to the state who applied for welfare benefits could only receive the benefits they would have received in their former state, rather than the level of welfare benefits available to those who had already lived in California for more than a year...
...The gist of the argument seems quite clear: It is as if Congress commanded the EPA to select "big guys" and the agency announced that it would evaluate candidates based on height and weight, but reveal no cut-off point...
...Circuit in American Trucking Associations v. EPA caused as much of a stir (at least in Washington) as any ruling this year by the U.S...
...The May 4 ruling of the U.S...
...The case deals with new air quality standards promulgated by the Environmental Protection Agency under the 1990 Clean Air Act amendments...
...Others have urged the court to invoke the catch-all language of the Ninth Amendment...
...and in the meantime, court watchers get some hints about judicial tastes...
...The court has never since then found the need to enumerate any such rights...
...In fact, that is rare in American jurisprudence...
...The appeals court insisted that Congress did not want the EPA to consider cost factors in determining what level of reduction in air-borne pollutants is "requisite" for human health...
...The privileges and immunities clause, the court held, was a guarantee against interference with the separate rights which persons hold in their capacity as federal citizens...
...It was a challenge to a Louisiana law, limiting the butchering trade in New Orleans to a few, specially licensed operators...
...But the Supreme Court was not content to invoke its precedents...
...The clause speaks of the rights of citizens...
...Congress should be responsible for making the laws and it should not pass this responsibility off to presidents or bureaucrats with no more than a meaningless admonition to attend to "the public interest...
...Yet the treaty seems to delegate many interpretative issues to international agencies...
...while six states demanding more JEREMY RABKIN is a professor of government at Cornell University...
...Instead of calling the statute inherently unconstitutional, it said that it would be so unless the EPA could defend an interpretation of the statute that gave it a more precise and limiting character...
...The decision was widely praised—and in some quarters, denounced—for seeming to revive the non-delegation doctrine...
...As applied by the EPA, the statute violates the constitutional principle against improper delegation of legislative power...
...Conservatives have spoken warmly about the non-delegation doctrine, partly because they assume that if Congress has to take responsibility for costly regulatory controls it will enact fewer of them...
...The court's decision to emphasize "citizenship" as an organizing theme of its jurisprudence may have very interesting implications down the road...
...Circuit panel in this case split along party lines, with Judges Williams and Ginsburg (both Reagan appointees) speaking up for the delegation doctrine, while Judge Tatel (a Clinton appointee) dissented...
...Those were rights of state citizenship, necessarily left to state authorities to define and regulate...
...But if the court wants to take a more active approach to the protection of economic liberty, it already has many clauses in the Constitution that might apply...
...What tantalizes scholars of economic liberty is that under such a revival, claims like the right to pursue one's chosen profession might finally get some protection from courts —which would mean closer scrutiny of burdensome regulatory schemes...
...In over 130 years since it was added to the Constitution, the privileges and immunities clause has contributed almost nothing to constitutional law...
...Here the court introduced a new argument—that it would violate the separate guarantee in the Fourteenth Amendment against any action "denying the privileges and immunities of citizens of the United States...
...A judiciary that insists agencies be bound by precise rules may be particularly resistant to granting any force or authority to standards issued by international authorities...
...The Clinton administration has not actually submitted the treaty for Senate ratification, and it may never be ratified, but the EPA is already talking openly about the need to reorient domestic energy use to comply with its terms...
...The 1968 ruling in Shapiro v. Thom p-son had invoked the 14th Amendment guarantee of "equal protection of laws" (reasoning that discrimination between newcomers and long-time residents violated this guarantee...
...Can Congress summon the will to say that, "to be precise," it does not mean that commercial operations must be totally clean or totally safe or totally fair, but only "as much so as seems reasonable under the following risk-benefit formula...
...The issues are so mind-numbingly technical and complex that those lawyers must have run up enormous fees...
...The idea behind the non-delegation doctrine is that when the Constitution says that "legislative powers...shall be vested in Congress," it means what it says...
...The Supreme Court said no, the clause was not meant to be a guarantee of such fundamental civic rights...
...The first case testing its meaning arose in 1873...
...Pressed to be precise, a future Congress may endorse the most ambitious standards called for by the biggest demagogues...
...The court majority emphasized not the reasonableness of the resulting standards but their predictability...
...A reasonable person would respond, "How tall...
...agencies announce their standards in advance, as the majority opinion notes in Trucking Associations, is that courts will then have a standard to which they can hold them...
...Some legal scholars have urged the court to revisit the Slaughterhouse case of 1873 and revive the original meaning of the clause as a guarantee of fundamental rights...
...So the decision may simply imply that agencies must control their own discretion by establishing their own rule-making standards...
...On the other hand, if bolder courts insist on the "strong form" of the doctrine, demand52 The American Spectator • July 1999 ing that Congress itself spell out the relevant standards, the results may not be what regulatory critics now expect...
...Butchers who had been put out of work by this law protested that it deprived them of their "privileges and immunities," which must, they argued, include the right topursue their chosen profession...
...One of the main reasons for insisting that U.S...
...How heavy...
...Court of Appeals for the D.C...
...The guarantees in the Bill of Rights, along with the due process and equal protection guarantees in the Fourteenth Amendment, are generally seen as rights that can be claimed by foreign visitors as much as citizens...
...There has been much speculation that the EPA decided to take a tougher "PM" standard not so much out of health concerns as to prod the U.S...
...But it is not clear that the new approach really will force Congress to act more responsibly...
...International authorities, on the other hand, are not subject to judicial review...
...Yet some that seem wonderful at the outset, such as answering machines and mobile phones, prove tyrants in the end...
...Some scholars have urged the court to rely for this purpose on the Fifth Amendment prohibition of uncompensated "taking" of private property...
...D oes this make any difference...
...The Trucking Associations ruling did not apply a full-strength version of the non-delegation doctrine...
...So the new doctrine may simply turn out to be a device that limits administrative discretion, without trying to influence the actual direction of agency action, so long as the agency acts consistently with its own announced standards...
...Two cases decided this spring are particularly intriguing in this regard...
...Whether we think of these as distinctive rights of state citizenship or federal citizenship—or deny that there is any contemporary point in this nineteenth-century distinction—one thing is sure: These rights can't be claimed by non-citizens...
...It is hard to see why the privileges and immunities clause would give the court more confidence to embark on these ventures than other, already available provisions...
...More than a hundred lawyers are listed as contributing to various briefs...
...The American Spectator July 1999 53...
...But even this version of the non-delegation doctrine may have some future relevance...
...Others —like the fabulous combination onion peeler and tomato masher, available only to viewers of late-night television and not sold in stores—turn out to be junk within hours of being unwrapped...
...The majority in Trucking Associations says—probably correctly—that Supreme Court decisions of recent decades do not support "the strong form of the non-delegation doctrine" that would insist on having statutory standards clarified by Congress itself...
...This year's decision was certainly consistent—if you are prepared to treat that whimsical expression of 6o's liberalism as a serious precedent...
...So instead of demanding that Congress do better, the court told the EPA to offer more explanation...
...It broke totally new ground in its justification...
...If the EPA decides that a program of hyper-stringency is called for, then, the court's reasoning suggests, it may promulgate ruinously costly regulations as long as they comply with the previously announced program...
...stringent standards were joined by environmental and health advocacy groups...
...But it will be a long time before we can be sure that it has done that, and if so, even longer before we know what the consequences will be...
...No one was very surprised when the D.C...
Vol. 32 • July 1999 • No. 7
