Making Our Democracy Work (18 page)

This interpretation of the statute may
not
be faithful to congressional purpose. After all, the statute’s basic purpose is to ensure confinement while the government looks for a country that will accept the alien. Neither the statute nor its history tells us what should happen if no such country can be found. Perhaps Congress would have wanted to keep the alien in confinement.

Nonetheless, as the Court pointed out, when there is a “serious doubt” about a statute’s “constitutionality,” the Court “will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” And that is what the Court did. It pointed out that the statute’s specific purpose was not “clear.” But it then went on to produce an interpretation of the statute that might not have been Congress’s first choice.
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The Court chose the risk of ignoring Congress’s purpose over the risk of setting the statute entirely aside. It chose to interpret the statute in a way that was consistent with the Constitution. It thereby stopped unconstitutionality in its tracks. And it seems reasonable to assume that Congress would have preferred this trade-off if given the option. That is, Congress would likely favor an interpretation of the statute that ensured its continued validity to an interpretation that made it vulnerable to invalidation.

Although this interpretive principle may depart from an ordinary purpose-based approach, it serves the same practical function. Like the purposive approach, it seeks to minimize friction between the Court and Congress. The interpretive principle recognizes that the Court can, and where possible should, avoid friction by not interpreting a statute in a manner that requires invalidation (or seriously threatens that
result). If a court finds a statute unconstitutional, it cannot avoid friction. It has to strike the statute down. Thus, the interpretive principle helps the two governmental institutions, Congress and the Court, work together in carrying out the Constitution’s practical objectives. It helps maintain a constitutional system of government, and forms part of an overall approach that promises a workable Constitution and helps to secure continued public acceptance of the Court’s decisions.

H
OW MUCH DEFERENCE
should the Court give to an executive branch agency’s own formulation of a policy or to an agency’s determination of what a statute means? How willing should the Court be to overturn or to sustain an agency’s decision about these matters? The answers to these technical-sounding questions are more important than one might think. Administrative decision making constitutes the bulk of executive branch work; and the bulk of its administrative decisions are subject to judicial review. Hence, the questions’ answers help to define much of the Court-executive relationship. Moreover, agencies act within the confines of statutes. Hence, in answering the questions, the Court must keep Congress in mind.

Most important, the answers affect the lives of ordinary Americans. While it is easy to see the effect of executive branch decisions on basic rights, such as the presidential order to send troops to Little Rock to enforce
Brown
, it is harder to remember that routine agency decisions can also affect our daily existence, often in profound ways.

The answers matter, for they affect the way government works, the ability of modern government to solve the problems of ordinary Americans, and consequently the broader question this book considers: how
the Court can earn the public’s confidence by developing relationships with other institutions that will help government work well.

W
HETHER WE LIKE
it or not, government administration is everywhere. The Constitution vests the “executive Power” of the United States in the president. The executive branch exercises that power by administering the laws that Congress enacts, and those laws are numerous. Government administrators implement laws that regulate the conduct of private businesses or individuals, that obtain money from citizens and businesses, that disburse funds, and that provide some goods and services directly. Federal statutes, for example, require or permit government officials to obtain, provide, or regulate taxes, welfare, Social Security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas, stocks and bonds, banking, medical care, public health, safety, the environment, fair employment practices, consumer protection, and much else besides (including the armed forces, which for present purposes I put to the side).
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Statutes delegate the authority to administer these programs sometimes to the president himself but more often to a (typically presidentially appointed) head of a cabinet department or bureau or perhaps an independent agency, such as the Federal Reserve Board, the Federal Communications Commission, or the Securities and Exchange Commission. “Independent agencies” are labeled as such because, unlike executive branch agencies, their members serve fixed terms and are removable by the president only for good cause, rather than on the basis of policy disagreements. Because of their relative autonomy from the president, some have called the independent agencies a “headless fourth branch” of government. But I believe them best considered as part of the executive branch.
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Agencies (and here I include virtually all civil executive branch agencies, bureaus, and departments) typically possess great power. They write regulations that, like congressional statutes, take effect as law. They resolve disputes, often in much the same way that courts
adjudicate controversies. They investigate private behavior. They impose sanctions, such as heavy fines, on those who violate their rules, and they license businesses or individuals to perform services. They regularly consider and grant requests by individual private citizens for goods or services, ranging from books of the president’s speeches to local weather forecasts.

In a word, federal government programs are many, they come in different shapes and sizes, and they employ millions of government officials and ordinary workers (two million civilian employees in 2009). It is important to keep their size, complexity, and diversity in mind even though here I use the singular term “agency” to refer generically to the units that administer most government programs. I shall also overlook the fact that some agencies enjoy special independence from presidential control.
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D
ESPITE THE SIZE
and complexity of government administration, the Court often applies principles drawn from one branch of law, administrative law, when it reviews the lawfulness of an agency’s actions. Our legal system asks courts to review agency work because the technical nature of modern society, along with the public’s desire for Social Security, medical care, and the like, has brought laws that delegate enormous decision-making power and responsibility to administrators who are not themselves elected. The federal government has regulated railroads since the 1880s (through the Interstate Commerce Commission), pharmaceutical drugs since the beginning of the twentieth century (through the Food and Drug Administration), and unfair or deceptive business practices since World War I (through the Federal Trade Commission).

Technological change and changing political attitudes during the 1930s led to President Roosevelt’s New Deal, which significantly expanded the scope of federal regulation. The New Deal created and augmented the power of many independent regulatory commissions, such as the Securities and Exchange Commission, the Federal Power
Commission, the National Labor Relations Board, the Civil Aeronautics Board, and the Federal Communications Commission.

Government again expanded the scope of regulation significantly in the 1970s with the creation of powerful but not necessarily organizationally “independent” regulatory authorities, such as the Environmental Protection Agency, the Occupational Safety and Health Administration, and the National Highway Traffic Safety Administration. The deregulation movement of the late twentieth and early twenty-first centuries changed somewhat the manner and extent to which the government regulated. A few regulatory programs and agencies were abolished (such as the Civil Aeronautics Board and the Interstate Commerce Commission). More commonly, Congress changed the name and government location of an agency, for example, changing the name of the Federal Power Commission to the Federal Energy Regulatory Commission and moving it to the Department of Energy—all without major change in function or performance.

The Roosevelt administration and later administrations saw the expansion of government authority as a practical necessity. Just after the New Deal, James Landis, a strong advocate of activist government, wrote that the “administrative process is, in essence, our generation’s answer to the inadequacy of the judicial and legislative processes.” But the resulting growth and concentration of power also led the public to return to Madison’s basic observation: “if angels were to govern,” there would be no need for “controls,” but in a world where government is “administered by men,” how do we make government “control itself”? How can we ensure that related administrative decisions are fair and reasonable? Or, as the ancient Romans put it,
quis custodiet ipsos custodes?
Who will regulate the regulators?
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At the time of the early New Deal, some thought the “science” of administration itself would check administrative behavior, rather in the way that medical science and canons of ethics limit doctors’ behavior. But few today believe in a “science” of regulation or administration “canons” that, if followed, would bring about fair, reasonable decisions. Rather, we have relied on Congress, the president, and the courts to oversee administrative decision making.
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Congress oversees agency decision making through hearings, budget
decisions, and ultimately legislation. But congressional oversight is limited by the same lack of time, knowledge, and expertise that led Congress to delegate power to the agency in the first place.

The executive branch relies on a number of sources to check agency action. For example, it uses ombudsmen and inspectors general to detect improper behavior. Perhaps most significant, it conducts policy oversight through the Office of Management and Budget (OMB). A small OMB bureau, now called the Office of Information and Regulatory Affairs (OIRA), seeks to coordinate the regulatory work of the sprawling executive branch and improve its efficiency. But OIRA can review only a few agency policy decisions made each year. Furthermore, it may seek to influence an agency’s policy decision but lack the legal authority to change that decision. Outside OIRA, the president may not have the time or willingness to review decisions, even those of his own political appointees.

Thus, courts too must have an important role in reviewing executive branch agency decisions. A member of the general public who will likely suffer concrete harm as a result of an agency action may typically seek judicial review. Applying basic principles of administrative law, a court may consider whether the agency properly found the facts, followed proper procedures, and followed its own rules and regulations. A court may also consider whether the agency’s determinations, including those of policy, are reasonable; not “arbitrary, capricious, [or] an abuse of discretion”; conform to certain basic principles of fairness; are consistent with relevant statutory requirements; and are consistent with the Constitution.
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C
OURTS FIND THE
notion of comparative expertise useful, indeed necessary, when reviewing administrative decisions. Courts ask which institution, court, or agency is comparatively more likely to understand the critical matters that underlie a particular kind of legal question, broadly phrased. Courts are more likely to have experience with procedures, basic fairness to individuals, and interpreting the Constitution.
Thus, where questions of this kind are at issue, courts are less likely to give much deference to agency decisions. Agencies, however, are more likely to have experience with facts and policy matters related to their administrative missions. Thus courts will likely give agencies considerably more deference when decisions are about these matters.

This notion helps courts answer a key question of administrative law: What
attitude
should a reviewing court take toward the administrative agency’s decision? What do I mean by “attitude”? That word refers to the standards that judges use when reviewing the lawfulness of a decision made by other judges, by juries, or by administrators. For example, an appellate court will set aside a lower-court judge’s finding of a fact only if the finding is
clearly erroneous
. A judge reviewing a jury’s decision that a criminal defendant is guilty will overturn the jury’s verdict only if
no reasonable person
could have reached that decision. And a judge reviewing administrative agency findings of fact will set them aside only if they are not
supported by substantial evidence
. Each standard gives slightly more leeway to the fact finder than the preceding one.
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