". . . and having done all . . . stand firm." Eph. 6:13


Biden Veto Highlights Constitutional Imbalance of Executive Rulemaking

March 23, 2023

If it’s hard to pass laws, fewer bad ones will be passed. That’s a basic idea underlying the elaborate legislative system framed in the U.S. Constitution. But this principle is increasingly ignored and undermined by a thriving shadow-legislature in the executive branch.

President Joe Biden’s Monday veto of H.J. Res. 30 highlights the upside-down way in which the U.S. federal government now operates. Both chambers of Congress passed H.J. Res. 30 to reject a rule written by an executive branch agency, the Department of Labor, that exceeded its rulemaking authority and contradicted a law passed by Congress. Now, in effect, both houses of Congress must override the president’s veto by a two-thirds majority to prevent what is effectively a new law from taking effect. This is not the model the Framers intended.

The men who drafted, edited, and ratified America’s founding charter largely shared republican (small-“r”) convictions. Because they recognized inherent flaws in human nature, they distrusted monarchies, which centralized power in the hands of too few people. So, they sought to disperse power to guard against its abuse. But, because of inherent human flaws, they also distrusted democracies, in which the majority were susceptible to violent, foolish passions, inflamed by demagogues, that would trample on minority rights (mob rule). So, they provided checks and balances of power to guard against abuse.

The Framers’ suspicion of men in power is evident from the constraints placed upon lawmaking throughout the Constitution:

  • They vested “all legislative powers” in a national Congress (Article I, Section 1), while assigning executive power to the president (Article II, Section 1). This means the president cannot make laws, while Congress cannot execute them.
  • They further divided the legislative power of Congress into two chambers, a House of Representatives (Section 2) and a Senate (Section 3). Since a majority of both chambers must agree on any laws passed, this theoretically guards against majority passions that infect only one chamber leading to bad laws. Individual members of these chambers are accountable to the people (and states, originally) who elected them.
  • They distinguished the chambers by creating different qualifications for seats, different methods of apportioning seats, and (originally) different processes for selecting members. The chambers also fulfill slightly different roles (the House must originate all revenue bills, while the Senate must consent to treaties and executive appointments). Theoretically, these distinctions would make the two chambers appeal to the common and upper classes, thus satiating the ambition of each.
  • They tempered the lawmaking power of Congress by granting the president power to veto legislation (Article I, Section 7). But, so that they did not give the president undue power over legislation, they allowed Congress to override a veto by a two-thirds vote of both houses.
  • They delineated the legislative power of Congress by listing the topics on which they could legislate (Section 8), and those which they couldn’t (Section 9). They further limited the powers of Congress to infringe upon the rights of states or individuals in the bill of rights (Amendments 1-10).

The Constitution spends more time on the legislative process than on any other area of government. Why? Because the Framers understood that lawmaking is the most important and powerful tool of government. They entrusted it to Congress, which is directly accountable to the people (and, originally, state legislatures), but they also built in various safeguards.

Many of our constitutional safeguards on the legislative process are widely criticized as inefficient or contributing to gridlock, but that’s the whole point. If the standard for legislation was merely that 50%-plus-one Americans thought it was a good idea, then we should enact all laws by plebiscite (direct election, such as ballot initiatives). The whole point of Congress is to foster deliberation, debate, caution, and, yes, even gridlock on controversial policy issues that will impact different people in different places differently. This heightens the standard for laws from “anything briefly favored by any majority” to “policies that can survive the turns and tests of (often adversarial) legislative process.”

Or at the very least, it should raise the standard for laws. But meeting this standard is hard. And, as government grew in size and complexity through the 20th century, Congress often punted on making laws to match. How this developed is far beyond the scope of this piece, but suffice it to say that, under the 21st century American regime, not all lawmaking is done by Congress.

Wait a minute, you may be thinking — of course Congress is the agent responsible for passing laws. In the sense that everything we call a law is passed by Congress, that’s true.

But considered more generally, a law is a mechanism to formalize policies into rules that a person can be punished for not observing. Congress isn’t the only agent who does that. For instance, after the Supreme Court’s Roe v. Wade decision, legal abortion-on-demand was considered “the law of the land” for 50 years, even though Congress never passed a law to declare it so. And while rogue courts might grab the headlines, far more frequently executive agencies are the ones making “rules” — that are effectively laws — without congressional approval.

So it was with the Labor Department’s rule, Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, which took effect at the end of January. The new rule allowed investment managers (defined broadly enough to include managers of 401k retirement funds) to “include the economic effects of climate change and other ESG [environmental, social, and governance] considerations” on investment decisions.

This language directly contradicts the Employee Retirement Income Security Act (ERISA), passed by Congress in 1974. ERISA required investment managers to act “solely in the interest of the participants and beneficiaries and … for the exclusive purpose of … providing benefits to participants and beneficiaries.” It also required assets to “be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan.” Even if Congress in 1974 had contemplated allowing investment funds to promote an environmental agenda, it would have been to fight “global cooling.” Yet the Labor Department claimed its rule directly contradicting ERISA was released under ERISA’s authority.

There’s a case to be made for Congress to delegate limited rulemaking authority to executive agencies. Congress could order the Department of Energy, for example, to draft a rule for the safe disposal of radioactive byproducts of nuclear power generation so that no one is exposed to dangerous levels of radiation. In this example, the Department of Energy would simply execute the policy determined by Congress by filling in the details. The theory is that the agency’s scientific experts could better achieve this goal than Congress itself could — afflicted as it is by politically motivated negotiations — and more quickly revise the standards in response to new information. This and similar cases may or may not persuade the reader about the role of executive rulemaking; regardless, enough people — legislators in particular — are persuaded of the value in executive rulemaking that it’s not going away any time soon.

Nevertheless, executive rulemaking has a constitutional flaw: it erodes the separation of powers and weakens the checks and balances. By delegating rulemaking authority to executive agencies, Congress is delegating part of its legislative power to an arm of the executive branch. Thus, the same agency who executes the law also often writes it (agencies have wide latitude to adjudicate disputes, too). As long as all the different parts of government get along and agree, and no agency seeks to abuse its power, this shouldn’t be a problem. But the Framers created these constitutional safeguards precisely because they expected political disagreements, and they expected human ambition and self-interest to tempt those who wield power to abuse it.

This is increasingly what executive agencies — prompted by the presidential administration that directs them — are attempting to do. The Occupational Safety and Health Administration (OSHA) tried to force employees to get vaccinated against COVID or face termination. The Centers for Disease Control and Prevention (CDC) forbade landlords to evict tenants who were behind on their rent. The Environmental Protection Agency (EPA) tried to regulate carbon dioxide emissions as a pollutant. The Department of Education froze student loan payments and tried to cancel them. It also tried to bully school districts to allow students who identify as transgender to use the restrooms and locker rooms reserved for the opposite sex. In all these examples — from just the past four years — executive agencies pursued a policy objective cut from whole cloth, one which no law enacted by Congress had so much as hinted at.

With so many recent instances of executive rulemaking exceeding its authority, it’s hard to avoid the conclusion that executive agencies now often behave as independent, unelected legislatures — in practice, if not in theory. How often do they do this? The Federal Register (which compiles rules made by all agencies) in 2022 ran to 80,756 pages and included 3,168 final rules, which is fairly standard. Perhaps some of those 3,168 final rules were legitimate, but who has time to check them all?

In delegating vast rulemaking authority to federal agencies, Congress did leave themselves an option to correct agencies. A simple majority of both chambers of Congress must pass a resolution of disapproval within 60 legislative days to nullify an agency rule. But there’s a catch: the president can veto that resolution, as President Biden did to H.J. Res. 30. If the president does, it takes two-thirds of Congress to override the veto, a near impossibility.

If an agency finalizes a rule against the wishes of Congress, but aligned with the interests of the president, they can effectively enact new laws, so long as at least one-third of one chamber of Congress supports the move (to kill a veto override). This is a lower threshold to pass legislation than for bills that make their way through Congress. In Congress, a bill must receive at least majority support in both chambers (two-thirds support if the president disapproves), not to mention surviving the committee and calendar processes. In agency rulemaking, a rule needs majority support in only one chamber (or, if the president approves, support of only one-third of one chamber). An agency must jump through some extra hoops, but it can create what are effectively new laws that are supported by only a fraction of the people’s elected representatives.

This undemocratic state of affairs, whereby the legislative branch has ceded legislative power to the executive branch, increases the relevance of the judicial branch of government to restore constitutional balance. The Supreme Court struck down the rules by OSHA, CDC, and EPA mentioned above on the grounds that Congress must explicitly address “major questions” for agencies to act. It is now considering the student loan forgiveness rule on an expedited basis, and 25 states have brought a federal lawsuit against the ESG rule, which could ultimately end up before the Supreme Court. On the other hand, the Supreme Court has looked favorably on agencies redefining “discrimination on the basis of sex” to include sexual orientation and gender identity, thus undermining protections for women and rejecting biological reality.

The point is, Congress has proven to be near-powerless to stop this onslaught of legislating from the executive branch. With its new composition, the land’s highest court often gets it right, but not always. The Supreme Court may have overruled Roe and returned power to legislate on abortion to the people’s elected representatives, but it continues to exercise considerable influence on a host of controversial political questions. Political questions ought to be decided in the political arena. But because it’s easier to enact an executive rule than block it, increasingly these political questions are pre-determined by the executive branch, leaving the courts to mete out judgments after the fact.

Joshua Arnold is a senior writer at The Washington Stand.