Skip to main content

Is it unconstitutional for the President to implement major new policies by regulation?

Dan Farber, professor of law | February 3, 2014
The short answer is a resounding No. Some domestic initiatives obviously do require Congressional approval because they are clearly outside the authority conferred by existing law.  But Congress has given the executive branch broad discretion to regulate in many areas, and the executive branch can use that authority for major policy initiatives.  The only real restriction is that the actions have to fall within a reasonable interpretation of the statute.
ConstitutionObviously, not everyone agrees. As Politico explains, Republicans have argued that using executive powers for new purposes is an abuse of presidential power:

[Republicans] have called the president’s tactics abusive and arrogant, a brazen end run around the checks and balances built into the Constitution.

“This president’s use of executive power in areas where he has failed to build a necessary consensus for legislative action has been unprecedented,” said Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee. “This disregard for the rule of law and lack of transparency sets a dangerous precedent.”

For example, Paul Ryan said, “We have an increasingly lawless presidency where he is actually doing the job of Congress, writing new policies and new laws without going through Congress. Presidents don’t write new laws, Congress does.”  Of course that’s true, but if something is authorized by an old law, a new law isn’t required. And the Supreme Court has given the President broad authority to interpret old laws so as to implement his own view of policy.

Some people have argued that laws should be interpreted narrowly so that really big policy initiatives have to go through Congress.  The basis for this argument is a case called FDA v. Brown & Williamson, where the Supreme Court rebuffed an effort by the FDA to use existing statutory authority to regulate cigarettes.

This holding never made sense to me in  the first place.  Some people said it was democracy-enhancing to require new policy initiatives to come from Congress, but to me it seemed only to enhance the power of special interests like cigarette companies to block reform.  The Supreme Court later made it clear, in another case called Massachusetts v. EPA, that the earlier decision wasn’t based on democracy-forcing but on the long history of Food and Drug Administration’s explicit refusal to regulate cigarettes, combined with Congressional reliance on that stance.  Anyway, no one ever thought it was unconstitutional for the President to try to make aggressive use of statutory power, just that it might exceed statutory authority.

Another Supreme Court opinion, Chevron v. NRDC, emphasizes executive discretion in interpreting the law.  According to Chevron, when a statute is ambiguous, resolving the ambiguity involves a policy judgment, and it is up to the executive branch to make that policy judgment.  A court will only intervene when the executive’s interpretation of an ambiguous statute is unreasonable, and the Court has only found that to be true in a single case (dealing with the relatively obscure issue of deadlines for controlling ozone pollution).

The bottom line is that particular actions by Obama might or might not hold up in Court, but there’s nothing wrong with the executive branch using regulations to make new policy.  According to the Supreme Court, that’s exactly what the executive’s job.  If Congress is unhappy, it should amend statutes to provide tighter limits on executive authority.

 Cross-posted from the environmental law and policy blog Legal Planet.

Comments to “Is it unconstitutional for the President to implement major new policies by regulation?

  1. Before we talk about the Constitution we should ask ourselves some critical questions:

    What is a constitution?

    According to Vernon Bogdanor a constitution is, “… a code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and defines the relationship between these and the public.” In other words, it tells the government – all three branches – what it can and cannot lawfully do and it tells the governed what they can and cannot lawfully do.

    Thomas Hobbes (1588-1679) and John Locke (1632-1704) believed that without government, “… life is solitary, poor, nasty, brutish and short.”

    Thomas Hobbes’ Leviathan (1651) is considered one of the earliest and most influential examples of “Social Contract Theory” The decision of individuals to cede some of their individual rights in order to secure others.
    Yes, but this still doesn’t tell us what a constitution really is, however, if you take nothing else from Montesquieu’s The Spirit of Laws, it should be this, “The constitutions of Rome and Athens were excellent. The decrees of the Senate had the force of laws for the space of a year, but did not become perpetual until they were ratified by the people.”

    Now we have something. Only the people can give any constitution legitimacy and even if the people participate in the formation of a social contract surrendering some rights to secure others the ultimate choice is theirs because as Fuller argues in his, The Morality of Law, “You cannot have law where those that govern do not respect the agency of those that they govern.”

    I submit that 270 ‘electors’ who are chosen [Not Elected] to be members of the antiquated Electoral College – do not represent the true will of the people, e.g. millions of voters versus 270 chosen electors in the name of a body that has long outlived its usefulness – the Founding Fathers must be spinning in their graves. One of the flaws of our Constitution was the failure to envision political parties – we can, however, overcome this flaw by allowing the majority of voters – Republican or Democrat – to have their votes counted and not nullified by the political allegiances of the chosen few electors.

    The most famous example of a written constitution is the U.S. Constitution, which begins with: “We the people …” not ‘we the government’ of these United States, or ‘we the chosen few’ of the Electoral College, or we the ‘Executive’.

    Why do we need a Constitution?

    Because, constitutions ultimately provide the means, by which any democratic society is governed. A constitution ensures stability, prevents totalitarianism, limits state powers – as in the case of Entick v. Carrington – the foundation of the Fourth Amendment – and allows other bodies to govern the actions of the government and the legislature.

    Codified constitutions – like the U.S. Constitution – are reduced to a single document and are considered the highest form of law in the country, e.g. Article VI of the U.S. Constitution states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land …”

    The doctrine of separation of powers is like a three-legged stool – Executive (the President and his cabinet) – Legislative (the House and the Senate) – and an Independent Judiciary (the Supreme Court) – if one leg is removed the stool will collapse.

    The model was first developed in ancient Greece where the state was divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches and later many theorists such as Montesquieu, John Locke and James Harrington described these functions as legislative, executive and judicial.

    However, a complete separation is neither possible nor desirable, because the government is the sum of its three branches rendering it impossible to have complete separation; also, complete separation is not desirable because without mutual coordination of the separate branches, the government cannot carry out its functions effectively and efficiently. These days the Executive branch seems to be attempting to assume the functions of all three branches with the slippery slope of moving our ‘government of the people’ dangerously close to tyranny.

    John Locke, wrote in his Second Treatise of Civil Government, “It may be too great a temptation … for the same Persons who have the Power of making Laws, to also have in their hands the power to execute them, whereby they may be exempt themselves from Obedience to the laws they make … to their own private advantage.” According to Locke this is the only way to prevent all of the power ending up in the hands of one of the three branches, Could Locke, have had premonitions of current events in America?

    In the end, three questions remain:

    Why do we have a separation of powers?

    Is this a descriptive doctrine or a constitutional ideal?

    Is it a means to promote efficient state action?

    Eric Barendt answers all three questions in his, Separation of Powers and Constitutional Government, by saying simply that, “Separation protects us from tyranny through checks and balances.”
    As Judge Learned Hand wrote: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it… What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.”

    I pray to God that the present administration will not lead us to the sorrow that Judge Learned Hand spoke of; however, I remain confident that the independence of our Supreme Court will prevent the destruction of our Constitution along with our freedom.

    “On February 27, 1933, the German parliament (Reichstag) building burned down. The Nazi leadership and its coalition partners used the fire to claim that Communists were planning a violent uprising. They claimed that emergency legislation was needed to prevent this. The resulting act, commonly known as the Reichstag Fire Decree, abolished a number of constitutional protections and paved the way for Nazi dictatorship.”
    ―HOLOCAUST ENCYLOPEDIA

    Instead of the “Reichstag Fire Decree” we have Trump’s Immigration Policy Executive Orders which not only offends natural law but Constitutional Law as well. Then Hitler blamed the Communists and now Trump blames everything on the Democrats – do you see the parallel?
    I would like to close with these warnings from John Locke, Judge Learned Hand, and Edmund Burke:

    “It may be too great a temptation … for the same Persons who have the Power of making Laws, to also have in their hands the power to execute them, whereby they may be exempt themselves from Obedience to the laws they make … to their own private advantage.”
    ―John Locke

    “What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.”
    ―Judge Learned Hand

    “The only thing necessary for the triumph of evil is that good men should do nothing.”
    ―Edmund Burke

    The final question is do we do nothing and let Trump’s “evil deeds” – in the words of Trump’s former lawyer Michel Cohen – go unchecked leading to the disappearance of the Rule of Law and Due Process, or do we stand up and invoke Article II, Section 4. of the Constitution, which provides:
    “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

    Donald Trump may not be guilty of treason, but any sane and right-thinking individual cannot help but see that his words and deeds these past two years surely encompass, “Bribery, or other high Crimes and Misdemeanors.”

    The Nazi legal system was not a historical accident, based on the viewpoints of the powerful legal elite in Germany in 1933; there was a constitutional order, and the tradition of constitutional law – based on positivist legal principles. However, most German judges and lawyers were anxious to establish an authoritarian rule supported by a legal system which rejected any protection of the individual against the state.

    The rule of law stems from the consent of the governed – not from the government or even a head of government. The preamble states: “We the people…” not “We the Government…” or “I Donald Trump will make America great again…”

    James Gilliam – 2L University of London

Leave a Reply

Your email address will not be published. Required fields are marked *