Caution: Separation of Powers Has Greatly Eroded

Written by John J. Brennan III
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Frank N. Wilner’s commentary “Threats Lurk to STB Independence” (May 22, 2022) raises interesting issues reaching back to the 1700s.

The U.S. Constitution, ratified in 1789, is patterned on the Massachusetts Constitution of 1780 written by John Adams. Unfortunately, Adams was appointed ambassador to France during the drafting of the U.S. Constitution. In his absence, Mass. Art. XXX was omitted:

Art. XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men. 

Even without Mass. Art. XXX, the U.S. Constitution still included a robust Separation of Powers. But this important protection has greatly eroded over the years. Congressional power and influence has waned. Meanwhile, the Executive Branch (which includes Independent Agencies like the STB) and the Judiciary have grown in power.

Between 40 and 50 years ago, Congress attempted to restore a little balance via something called the Legislative Veto. This concept gave Congress the ability to overrule regulations and regulatory decisions that exceeded the intent of Congress. But the Legislative Veto was overturned by the Supreme Court in 1983 in the name of Separation of Powers. INS v. Chadha, 462 U.S. 919 (1983). Ironically, this judicial decision only increased Executive power. 

The Chevron decision in 1984, which Mr. Wilner discusses in his article, further concentrated power in the Executive. Chevron allows an agency to interpret its own governing statutes, something normally reserved to the judiciary. Under Chevron, courts will not question the agency’s interpretation of a statute, even it another interpretation makes better sense. 

But if Chevron goes by the wayside, don’t expect any improvement in our government. In fact, a more likely result will be something very familiar—delay and paralysis. Unlike the venerable Massachusetts Supreme Judicial Court, the U.S. Supreme Court does not provide Advisory Opinions to the Executive and Legislative Branches. An actual case in controversy must wend its way through the federal system for years to have a chance of reaching the Supreme Court. It would take years of litigation before we see the results of abolishing Chevron.

Even worse, abolishing Chevron would only transfer legal interpretations from minimally accountable federal bureaucrats to unaccountable jurists. The voice of the people is only faintly heard in either forum. We need to find a better solution.

Personally, I am nostalgic for the Legislative Veto—possibly because I was forced to spend many months studying it in law school in the early 1980s. But more important, the Legislative Veto was an attempt to give the American people a way to restrain runaway Executive power. Regulations can have a big impact on ordinary Americans. It is much easier for John Q. Public to complain to his local Congressman than some bureaucrat in a distant alphabet agency. 

There is ample historical precedent for granting veto power to representatives of the people. In the ancient Roman Republic, elected officials called Tribunes of the People had the power to veto any state proceeding.

Interestingly, the underlying concept of the Legislative Veto still survives somewhat in the form of the Congressional Review Act:

“The law empowers Congress to review, by means of an expedited legislative process, new federal regulations issued by government agencies and, by passage of a joint resolution, to overrule a regulation. Once a rule is thus repealed, the CRA also prohibits the reissuing of the rule in substantially the same form or the issuing of a new rule that is substantially the same “unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule” (5 U.S. Code § 801(b)(2)).” https://en.wikipedia.org/wiki/Congressional_Review_Act (This is not an official legal brief so I feel free to cite Wikipedia!)

Going forward, there are many possible ways to restrain Executive power and bring more accountability to the bureaucracy. Here are a few suggestions:

1. Congress could try to implement a revamped version of the Legislative Veto. Perhaps it could be tested on a bill governing an obscure agency that nobody has ever heard of. (The STB?)

2. Another approach would be to sunset 20% of federal regulations in each two-year session of Congress. This would result in a complete overhaul of the entire regulatory code every 10 years. Some states already do a form of this. Ten years might seem like a long time, but court and agency cases can take longer. 

3. In the very least, Congress should put some teeth into the current agency Authorization process. Congressional Authorization empowers an agency to spend money. In general, Authorizations and related agency statutes are supposed to be renewed roughly every five years. Unfortunately, Congress has no qualms in appropriating funds to agencies with expired authorizations. This like driving on an expired license—and getting paid for it.

Scholars will agree that there is a major obstacle to implementing any of the reforms above. It would create work for Congress. Imagine having to work three full days per week, recesses excluded. Oh, the horror.

The author is the retired Chief Counsel of the Federal Transit Administration and former Senior Counsel for the Union Pacific Railroad. During the 2000s, he served as Staff Director and Counsel for the House of Representatives Subcommittee on Railroads, Pipelines and Hazardous Materials. Mr. Brennan belongs to the bar in Massachusetts and Nebraska, and holds degrees from the University of Massachusetts-Boston and Suffolk University Law School. Mr. Brennan is currently a Rail and Transit legal consultant.

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