George Will:
As the administrative state distorts America’s constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch.
In four opinions in 112 days between March 9 and June 29, Thomas indicted the increasing incoherence of the Court’s separation-of-powers jurisprudence. This subject is central to today’s argument between constitutionalists and progressives. The former favor and the latter oppose holding Congress to its responsibilities and restricting executive discretion.
“The Constitution,” Thomas notes, “does not vest the federal government with an undifferentiated ‘governmental power.’” It vests three distinguishable types of power in three different branches. The Court, Thomas says, has the “judicial duty” to enforce the Vesting Clauses as absolute and exclusive by policing the branches’ boundaries.
Particularly, it should prevent Congress from delegating to executive agencies the essentially legislative power of formulating “generally applicable rules of private conduct.” Such delegation, Thomas says, erases the distinction between “the making of law, and putting it into effect.” This occurs when Congress — hyperactive, overextended, and too busy for specificity — delegates “policy determinations” that “effectively permit the president to define some or all of the content” of a rule of conduct.
Today, if Congress provides “a minimal degree of specificity” in the instructions it gives to the executive, the Court, Thomas says, abandons “all pretense of enforcing a qualitative distinction between legislative and executive power.” As a result, the Court has “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”
Writing in National Affairs quarterly, Charles J. Cooper, who served in Ronald Reagan’s Justice Department, says the principles Thomas has articulated “attack the very existence of the modern administrative state.” This state, so inimical to conservatism’s aspiration for government limited by a constitutional structure of rival branches, depends on something conservatives too frequently and reflexively praise. It depends on judicial deference to the majoritarian institution of Congress even when Congress delegates its legislative powers to unaccountable agencies.
Cooper notes that in an 1887 essay, Professor Woodrow Wilson of Bryn Mawr College said that the complexities of modern life demand government by experts — administrators with “large powers and unhampered discretion.” Wilson, who became the first president to criticize America’s founding, regretted the separation of powers because he thought modern government required a clerisy of unfettered administrators.
When, during the New Deal, the Court became permissive about Congress delegating essentially legislative powers, there was, Cooper says, “an implicit bargain: The Court would permit Congress to delegate — and the administrative state to exercise — legislative, executive and judicial power, but it would review administrative exercises of such power to prevent lawlessness and abuse.”