Archive for Thursday, May 20, 1999


May 20, 1999


— The court ruling transfixed this city but probably has been barely noticed elsewhere. It should be noticed. It touches the vitality of representative government.

Last week a federal appeals court ruled, 2-1, that some air quality standards promulgated by the Environmental Protection Agency were so ill-defined and unprincipled that the EPA must have exceeded its powers in setting them. It must have because -- this is the dynamite in the court's decision -- Congress would have acted unconstitutionally if it had delegated such unfettered authority under the Clean Air Act.

That is, if Congress intended the EPA to exercise almost uncircumscribed discretion, Congress made a mockery of the separation of powers by delegating essentially legislative powers to an executive branch agency. This ruling resuscitates -- how much remains to be determined, probably when the case reaches the Supreme Court -- the "nondelegation doctrine," which has been dormant since the mushrooming of the regulatory state under the New Deal. If that doctrine stages a comeback, Congress may have to return to legislating.

Nowadays, congressional lawmaking often amounts to little more than stipulating goals (e.g., no sex discrimination in federally funded education programs) or expressing sentiments (e.g., that there should be no discrimination against people with disabilities). Congress leaves it to executive branch bureaucracies to say, by means of regulations, what the legislation actually means.

Soon there is an avalanche of litigation arguing that a law, not as Congress made it but as Congress allowed it to be made elsewhere, requires, say, equal numbers of men and women in a university's athletic programs. Or requires employers to regard chronic tardiness as evidence of a mental disorder that amounts to a disability.

Since the 1930s, courts have been tolerant of delegating by Congress. The argument has been: Because society is increasingly complex, and because government is increasingly involved in recondite matters, and because legislators are generalists and regulators are specialists, therefore (in the words of a 1989 Supreme Court ruling), "Congress simply cannot do its job absent an ability to delegate power under broad general directives."

However, that might mean that if, in order to do what it considers "its job," Congress must leave lawmaking to unelected people, Congress should reconsider its understanding of its job. But that would require Washington to think the unthinkable: Perhaps big government is incompatible with self-government. Self-government is connected to the unshirkable responsibilities of representative institutions.

The same issue -- the dilution of American democracy -- frequently arises in the steadily expanding reach of what is called international law. Much of that law is not even codified in the form of treaties subject to deliberative ratification processes.

Professor Jeremy Rabkin of Cornell notes in his new book, "Why Sovereignty Matters," that in the first 100 years under the Constitution, Congress ratified 277 treaties and presidents made 265 executive agreements. In the next 100 years the number of treaties tripled but executive agreements increased 25-fold. Between 1980 and 1992 there were 218 new treaties but 4,510 new executive agreements by presidents required only to notify Congress of such agreements.

"We seem," writes Rabkin, "to be letting international agreements and international authorities determine more and more of our policy." One reason the Reagan administration refused to seek ratification of the still-unratified U.N. Law of the Sea Treaty was that an international authority would have excessive rule-making and licensing powers. However, some "side accords" associated with the North American Free Trade Agreement (NAFTA) entangle trade agreements with domestic policies regarding labor and the environment, a problematic precedent.

In 1973 the Senate ratified the U.N. World Heritage Convention, under which nations propose historic or scenic sites for inclusion on a kind of landmarks registry. Innocuous? Not exactly. In 1995, the Clinton administration, prompted by environmental advocacy groups, invited the World Heritage Committee, which under the Convention monitors the safekeeping of "world heritage sites," to sound off about a proposed mining operation near, but outside of, Yellowstone National Park.

That episode was trivial. However, consider what is contemplated by Al Gore and other advocates of the Kyoto Protocol, signed last November.

Its aim is, in effect, to ration energy use among a few developed nations in order to cut emission of greenhouse gases. It commits the United States to reduce energy consumption within its borders. If ratified, the Protocol would submit the United States to enormously costly policy decisions by foreign "experts."

Because senators flinch from political suicide, the Protocol cannot be ratified. But the fact that the Clinton administration favors it proves the prevalence of the "delegation impulse," which debilitates democracy.

-- George Will is a columnist for Washington Post Writers Group.

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