The executive branch’s job is to enforce laws, not make them

The Trump administration unveiled two controversial sets of regulations last week. One narrows the eligibility criteria for legal immigrant status. The other eases protections for threatened and endangered species. Both policies face legal challenges.

People can legitimately debate whether these rules make sense as a matter of policy and politics. The environmental regulations arguably do more to protect big business than animal species, while the new immigration regulations make it even harder for migrants to remain in the United States legally. 

As a personal matter, judges might like or dislike these outcomes. But as a professional matter, some judges believe that, under the Constitution, only Congress has the express power to make laws — not agencies that answer to the president. These judges tend to be ideologically conservative. Will that crowd join progressives to criticize the new regulations, albeit for different reasons?

Not likely. 

The argument against agency lawmaking was articulated most recently by Supreme Court Justice Neil Gorsuch. He wrote the dissenting opinion in Gundy v. United States, a case involving lawmaking by the attorney general regarding the national sex offender registry. Gorsuch eloquently argued that lawmaking power belongs to Congress, and for good reason. Unlike career bureaucrats within the executive branch, Congress is democratically accountable to the people if they wind up making bad laws. Executive branch officials are supposed enforce the law, not create it. This is because — with the exception of the president — the people get no say in hiring and firing those in the executive branch.

To be sure, President Trump campaigned on aggressive elimination of federal regulations — which is a longstanding GOP objective — and has held to this promise. Proponents of deregulation argue that the federal administrative bureaucracy is bloated and inefficient, and that regulation of free markets is bad for businesses and bad for the economy. Everyone does better if the markets are allowed to function unimpeded by bureaucrats who wind up blocking progress and innovation.

That’s a fine position to take, of course — so long as what is good for the goose is also good for the gander. The problem with the conservative argument against lawmaking by agencies is that it’s often — and conveniently — abandoned once an agency does something that conservatives like politically.

Department of Commerce v. New York involved lawmaking by the Department of Commerce regarding the contents of the U.S. Census form. The Constitution gives the power to implement the Census to Congress — not the president. Congress handed that power off to the secretary of Commerce in a statute called the Census Act. Although this is what Congress did in the statute challenged in Gundy — to Gorsuch’s chagrin — he said nary a peep about the hand-off of legislative power in the Census Act.

Conservatives cannot have it both ways. Either delegation of lawmaking power by Congress to the executive branch is constitutionally acceptable or it is not.

One might argue that deregulation is taking regulations off the books, so it doesn’t involve lawmaking, and is less constitutionally objectionable. But that’s not what the Trump administration’s environmental and immigration regulations do. They make new laws.

Let’s start with the Endangered Species Act. It provides that “the Secretary shall by regulation . . . determine whether any species is an endangered species or a threatened species.” That language is the “hand-off” of legislative power from Congress to the secretary of the Department of Commerce, whom today happens to be Wilbur Ross.

The statute then gives Ross a bunch of factors to use in deciding whether a species is endangered or threatened, including habitat destruction, overutilization of the species for commercial or other purposes, disease or predation, inadequate regulations or “other natural or manmade factors affecting its continued existence.”

The agency’s regulations add new factors to this list, including the requirement that a threatened species must become endangered “within the foreseeable future.” For that determination, the agency must now consider factors like “threat-projection timeframes, and environmental variability.” 

The immigration regulations are no less constitutionally objectionable. The Immigration and Nationality Act gives the secretary of Homeland Security the power to “establish . . . regulations” to implement the statute. (Again, that’s the “hand-off.”) The statute also states that “any alien who . . . is likely at any time to become a public charge is inadmissible,” and provides a list of factors for use in deciding if someone is a “public charge,” including age, health, family status, assets, resources, financial status, education and skills. 

Once again, the agency’s new regulations add new factors to this list, defining “public charge” to also capture “any alien who receives one or more public benefits,” including federally-funded benefits such as housing assistance and Medicaid.

Handing off legislative power to agencies is not considered unconstitutional under current Supreme Court case law, and there are good reasons for tolerating the practice.

But if conservative judges are going to complain about them, they should do so across-the-board. The leaders of the agencies involved in these rulemakings were never on the ballot for the offices they hold. Voters who don’t like these laws cannot go to the polls and fire them. This is precisely why Gorsuch and other conservative judges have balked at lawmaking by agencies. It messes with the separation of powers.

The question for conservatives is this: If either of these laws were to reach the Supreme Court, would Gorsuch kvetch that this particular lawmaking by executive branch agencies is constitutionally objectionable? Or would he stay silent — as in the Census case — leaving us to wonder whether his constitutional purity is contingent on conservative ideology and politics?

Because if it’s the latter, then we might have politicians on the Supreme Court after all.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. She is the author of “How to Read the Constitution and—Why.” Follow her on Twitter @kim_wehle.

This is the eighth piece in a series by Wehle on understanding the Constitution. Read her analysis on constitutional literacy, constitutional rights, the country’s crisis of compassion, war power, the Supreme Court, executive power and the presumption of innocence.