At Dorf on Law, Eric Segall: Libertarianism as Constitutional Interpretation. From the introduction:
Last week on the Law & Liberty Blog, Professor John McGinnis, a self-identified textualist-originalist, wrote a love letter to the Supreme Court about its decision in NFIB v. OSHA, which invalidated OSHA's COVID vaccination rules[,] and to one of the most important constitutional law cases in history Youngstown Tube & Sheet Co. v. Sawyer. In that case, the Supreme Court held that President Harry Truman could not seize the steel mills during the Korean War when a nationwide strike closed down the steel industry. The OSHA case is an administrative law case, whereas Youngstown is a constitutional one but the two decisions have one thing in common that McGinnis likes–courts striking down federal government actions during emergencies.
The title of McGinnis's post was "Jabbing the Administrative State." He wrote that the OSHA case may be "critically important" to the future of administrative law …
McGinnis gives the game away by being so delighted about the Court cabining the "awesome authority of the administrative state to make impositions on our liberty." Others might believe that the OSHA regulations requiring employers with more than 100 employees to either have them vaccinated or masked/tested was an important step to protect the American people from a terrible pandemic–a step courts should not second guess…
And in conclusion:
… There is nothing in the Constitution, or its original meaning, suggesting that Congress's authority to delegate "major powers," to federal agencies, whatever that even means, [is limited by the Constitution]. It is certainly true that federal agencies can only issue rules consistent with Congressional delegations. But as Professors Julian Mortenson and Nicholas Bagley have demonstrated in a lengthy and important law review article, at the Founding, Congress gave federal agencies broad powers to make all kinds of important decisions. McGinnis, of course, does not address any of that history.
As a policy matter, Congress cannot legislate in detail and must rely, and has always relied, on federal agencies to carry out its broad ideals. We all want less pollution, but the changing nature of environmental threats–from climate change to the numerous causes of dirty air and water–are not issues Congress can stay on top of on a regular basis. So it delegates to experts, within parameters, sometimes quite broad, sometimes more narrow, the day-to-day responsibility of figuring out the best ways to fight environmental dangers. In a country of our size, with 50 states, and over 330 million people, there is no other way. Unless of course one believes, as do McGinnis and the Republican Party, that regulations in general are bad and that a free market is always or almost always, the best answer. But that choice has nothing to do with originalism or textualism. It is a naked policy preference. It is libertarianism as constitutional interpretation.
Perhaps, and it is certainly worth considering whether the Court's emerging "major powers" doctrine has appropriate originalist foundations. But I think the intuition to distrust claims of vast open-ended delegation is more than a naked policy preference. The framers weren't libertarians, but they were deeply concerned about unchecked lawmaking and about uniting executive and legislative power. Thus they prescribed that only Congress would have lawmaking power (Art. 1, Sec. 1) and that Congress could only act by majorities in two distinct and separately elected chambers (Art. 1, Sec. 7) — so that lawmaking would depend on a consensus of multiple people and institutions. Modern delegations flout both limitations, at least in spirit. When Congress shifts "major powers" of policymaking to executive agencies, it effectively places lawmaking power in the President. Lawmaking thus is not separated from law execution and is not dependent on the deliberative consensus of elected representatives.
That's not to say, necessarily, that congressional delegation of "major powers" is unconstitutional. Perhaps the Constitution does allow this end run of Article 1, Sections 1 and 7 — either because the framers weren't worried about it or because they didn't think about it. But the originalist presumption, I would say, is to the contrary until proven otherwise, not because of a non-originalist libertarianism but because of concerns that were central to the framers' design.
Posted at 6:33 AM