Article by The Honorable Carl McGowan
What I propose to do in this academic setting is to think out loud with you a bit about the problems courts like mine and your own Fifth Circuit face in discharging their statutory obligations to review the results of agency rulemaking, particularly that treated by Congress as informal in nature. This is a problem that has been around a long time. But as we meet together here, it is of interest, I believe, to take at least passing note of some new dilemmas in the rulemaking field. They derive from the ancient concept of our federal government as based upon the separation of powers; and it appears that the courts will ultimately be called upon to resolve them.
The rising level of apprehension in many quarters about the veritable flood of rules and regulations emerging from informal rulemaking pursuant to broad delegations by Congress of legislative power has seemingly generated a desire by Congress itself to monitor agency action by the device of the one-house veto. The Department of Justice, in this and the preceding administration, has with particular vigor resisted the principle of this congressional scrutiny as contrary to the constitutional division of power between the legislative and executive branches. There has, as yet, been no definitive judicial disposition of the issue.
More recently, the White House, preoccupied as it increasingly is with rising costs and prices, and with strengthening the dollar, has apparently begun to assert a stronger role for itself in influencing, not to say restraining, agency rulemaking, at least with respect to those agencies lodged within the framework of the executive branch. This has touched off new complaints, in both congressional and nongovernmental circles, of transgression of the separation of powers doctrine. One suit has already been filed seeking to prevent the presidential economic advisers from interfering with the promulgation of strip mining regulations by the Interior Department. And more litigation is apparently in prospect as environmentalists talk darkly of secret meetings between the White House inflation fighters and the Environmental Protection Administrator to discuss air quality standards.
The spotlight indeed may have shifted for the moment from judicial sins of overreaching in their review of administrative rulemaking, while the legislative and the executive branches accuse each other of excessive interference with agency functioning. The federal judges—the "least dangerous branch," in Alexander Hamilton's phrase, because the least powerful—stand on the sidelines armed only with the conceded authority to decide whether one or both of these two giants is in constitutional error.
About the Author
The Honorable Carl McGowan. Circuit Judge, United States Court of Appeals for the District of Columbia Circuit.
Citation
53 Tul. L. Rev. 681 (1979)