Supreme Court nominee Brett Kavanaugh says that regulators stray from congressional intent, and courts should no longer defer to their decisions. His opponents answer that strict adherence to the letter of the law would deprive the country of necessary expert interpretation.
Neither of them means exactly what they say. Kavanaugh wants to cut back on regulators who aggressively interpret laws. In contrast, courts can interpret broad general laws narrowly, trimming regulatory powers. His approach results in a reduced role for government, possibly his true intention.
The opposition, composed mostly of Democrats, sees regulators as filling out policies that legislators adopted in broad outlines. But the risk is that regulators may impose their own views.
Legislators do pass much of their responsibility to the executive branch and to regulators. Here are three examples.
Last week, the U.S. announced that it was required by a 1991 law to impose sanctions on Russia for having used a deadly chemical to try to kill it owns citizens living in Britain.
After the recession, Congress told regulators to prevent banks from risking customers’ money in making investments. But the regulatory process dragged on for years, allowing bank lobbyists to press for watering down the rules. The lobbying worked. Congress did nothing.
Gov. LePage refused to allow bonds, approved by voters, to be issued.
These cases show legislators either required action as with chemical weapons or allowed executives or regulators considerable power.
The law on poisonous chemicals provides that the government must impose sanctions on a country when there’s proof that it used them. No further judgment is allowed, though the president can waive some penalties.
The law on banks, passed by Democrats, gave regulators weak instructions and no time limits. They caved to the banks and then a GOP Congress took no remedial action.
Maine voters have authorized public debt proposed by the Legislature. The governor has administrative responsibility to manage the process. Unlike his predecessors, LePage has extended this role so he can veto the voters and block the borrowing. The law gave him too much wiggle room.
Legislators often paint with a broad brush. They expect regulators and judges to fill in the details that are necessary before their intentions can be put into operation.
Their excuse is that some matters are so complicated that the details have to be worked out by experts. The result is that they allow unelected officials to make the rules that have to be followed. Legislators may check to see that the rules follow the law, but often, especially in Washington, they don’t.
Congress also cedes its powers to the president. It controls American trade policy and must approve tariffs on imports. But it has taken to allowing the president broad tariff-setting authority in the belief that the chief executive will promote the interests of American consumers and exporters.
It allows the president this authority so it can avoid tough decisions that are sure to displease some American interests. Avoiding the burden of decision is both more efficient and less likely to lead to members’ defeat at the ballot box. It is not leadership.
This broad grant of authority to the president has now produced big problems. Trump sees tariffs as an instrument of foreign policy, a sort of war without cannons, rather than as a key element of economic policy. To him, winning means having a favorable trade balance with another country.
“Tariffs are the greatest,” he says, because he doesn’t need approval from anybody else to raise them. Using tariffs as an instrument of war, Trump pays little attention to their economic effect on Americans or to retaliation by other countries.
Legislators could drop their broad brush and start paying closer attention to the details of what they are enacting. Or else, they need to adopt policies that can be applied exactly as adopted without leaving the details to administrators who are invisible to the public and difficult to hold responsible.
They also should refrain from ceding their legislative powers to the executive. They can keep more decisions for themselves and describe in greater detail the limits on the scope of executive powers they create. Laws should be more specific in describing exactly legislative intent and allow fewer exceptions.
Then, the powers of the president to set tariffs would be sharply reduced. The ability of the Maine governor to place his will above a decision of the voters would be banned.
The era of pious hopes about the good and fair judgment of executive officials has ended. Legislatures should legislate.