Brandeis University, Philosophy Department
Fall 2004
Brandeis University Web Stite

Philosophy 20A

Democracy & Disobedience

Professor Andreas Teuber
Prof. Teuber

Regulatory Reform

Ever since the New Deal, Congress has frequently delegated its lawmaking power to executive or regulatory agencies and commissions. For example, Congress has told the Federal Power Commission to "determine just and reasonable rates"; the Federal Communications Commission to promote "the public interest, convenience, and necessity" in broadcasting; and the Securities and Exchange Commission to "prevent an unfair or inequitable distribution of voting power among security holders." Congress has not even attempted to define "just rates," the "public interest," or "unfair voting power." Theodore Lowi and others have argued that legislatures should debate values, priorities, and trade-offs in public so that voters can assess their arguments as well as their decisions. Democracy is not well served by statutes that announce the good news (e.g., that the air shall be clean or the workplace risk-free), while leaving it to regulators to spell out the bad news (the costs and who must pay them).

An example shows what damage delegation can do to deliberation. In 1970, Congress enacted the Occupational Safety and Health Act to control hazardous substances in the workplace that impaired workers' health, functional capacity, or life expectancy. Senator Jacob Javits (R-NY) warned that the law "might be interpreted to require absolute health and safety in all cases, regardless of feasibility." He and his colleagues thus faced a profound philosophical question: whether safety should ever be balanced against efficiency, prosperity, employment, equity, or other economic values-and if so, how the balance should be struck. Instead of answering this question, they told the Secretary of Labor to "set the standard which most adequately and feasibly prevents harm to workers." The Labor Department thereby acquired the discretion to make almost any decision it chose. Congress had violated Locke's dictum that a legislature may make laws, but not legislators.

A recent textbook on administrative law flatly states, "Although there may be academic squabbles over the degree of power that bureaucracies have acquired, there is virtually no disagreement over the fact that the old dichotomy between policy making and administration is gone and that administrative agencies now perform both functions, fused into one institution." Because they are not elected and have no mandate to decide questions of value, regulatory agencies often hide the political choices they make behind a smokescreen of technical, expert discourse. Technocratic debates about costs and benefits may then eclipse public deliberation about ends and priorities.

Last May, a panel of three judges of the U.S. Court of Appeals for the District of Columbia responded to this problem in an important decision, American Trucking v. US EPA. Under the Clean Air Act, the Environmental Protection Agency (EPA) must set standards for air pollution that it finds to be "requisite to protect the public health" with "an adequate measure of safety." This language makes it far from obvious where to set the standards, since, as the Appeals Court noted, "the only concentration" of pollutants "that is utterly risk-free ... is zero." EPA's method has been to ask a group of experts to devise a numerical threshold that they deem adequately safe. In the case of ozone, the EPA's experts set the threshold at .08 parts per million. In establishing this threshold, the EPA implicitly decided the number of deaths society should be prepared to tolerate. Such decisions should only be reached by elected bodies that deliberate in public. The Constitution, indeed, vests "all legislative powers" in Congress. On this basis, the Appeals Court prevented the EPA from enforcing its ozone standard.

Alien Opinion 2004

A strict opponent of legislative delegation would demand that Congress judge how many deaths from pollution were acceptable. EPA would then decide (on the basis of scientific evidence) what level of pollution would produce the results that Congress had deemed optimal. The Agency would still have a choice to make: it would have to identify the most plausible scientific theory about the effects of pollution on health. But it would not have the discretion to decide how much health is sufficient. Since the Environmental Protection Act does give EPA such discretion, the Act appears unconstitutional.

However, the Appeals Court read "current Supreme Court cases" as permitting Congress to delegate some legislative authority to regulators. Therefore, instead of voiding the whole Environmental Protection Act and closing the EPA, the Court said that it would give "the agency an opportunity to extract a determinate standard" from the Act. A "determinate standard" apparently means an explicit value judgment that would transform the original statute (which endorses public safety, but only up to an unspecified point) into a clear statement of national priorities. If Congress felt that EPA's values were wrong, it could then respond with new legislation. For instance, if EPA stated explicitly that it considered x chance of y deaths to be tolerable, then its regulation would pass constitutional muster, because it would have "extracted" an explicit value judgment from the statute. To be sure, the Agency's judgment would not be the product of Congressional deliberation. But at least elected officials and the public could easily debate and change an explicit moral position taken by a regulatory agency, whereas they cannot grapple with myriad apparently technical decisions, such as the EPA's inscrutable rule that the threshold for ozone is 0.08 parts per million, rather than 0.07 or 0.09.

Even if federal courts go beyond the American Trucking decision and interpret the Constitution to forbid legislative delegation entirely-thereby dismantling much of the federal regulatory apparatus-state intervention in the economy would not be precluded. Conservatives often assume that unregulated markets work better than regulated ones and that a democratic society would embrace laissez-faire if only bureaucrats were stripped of their authority. I doubt it. The public in the United States-as in every other industrialized democracy-reasonably demands state action in many fields. Thus, if Congress could not delegate its lawmaking authority to executive agencies, voters might ultimately pressure it to adopt simple, efficient, transparent, but ambitious federal initiatives such as vouchers, cash transfers, and a guaranteed minimum income. But of course it would be up to citizens to decide how much federal intervention they wanted.

Alien Opinion 2004


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