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Thursday, Nov. 09, 2000

Although doctrinally they are miles apart, two cases that the Supreme Court will resolve this Term highlight why, in today's political context, the Court is absolutely essential to the system of checks and balances. Just as the Framers of the Constitution would have predicted, the political branches–Congress and the Executive–have attempted to extend their powers beyond constitutional boundaries. And while, over the past seventy years or so, the Court has borne responsibility for letting these branches surpass their boundaries, the current Court is taking on its proper role of bringing them back within their proper constitutional environs.

A History of Expanding Power for Congress and the Executive

From the 1930's until very recently, the Court has allowed Congress to burden the states with essentially whatever regulation Congress desires to impose. The Court, in other words, has declined to enforce with vigor any of the Constitution's inherent limits of federalism against any exercise of Congressional power.

As a result of the Court's failure to police Constitutional limits on federal power, Congress has come to understand its constitutionally enumerated powers not as the limited powers that they are, but rather as an entitlement to exercise unlimited, plenary power, regardless of burdens on the states. However, with its recent cases interpreting the Commerce Clause and Section 5 of the Fourteenth Amendment, the Court has reintroduced the notion of limited, enumerated powers, furthering (if not yet achieving) the Constitutional goal of confining Congress to its proper, and more limited, role in the constitutional scheme.

Over the same time period, beginning in the 1930's, the Court has also let Congress delegate difficult policy choices to unelected executive branch officials staffing the federal government's many administrative agencies. Congress has been permitted to have it both ways: it could declare two goals, popular among different sectors of the public, that were in tension with each other (for example, the goal of clean air and that of thriving industries); it could avoid the struggle of drawing the policy line that would force some trade-off between the two goals by delegating the job of furthering the goals to an administrative agency; and then it could blame the relevant administrative agency when citizens complained on that either goal was being given short shrift (sending, for example, both frustrated environmentalists and frustrated business groups to lobby the EPA).

Was this wholesale delegation of power to the agencies solely a result of the need to allow "experts" within the executive branch to resolve difficult policy issues? The answer is no. The growth of the administrative state has been every bit as much a result of the Court's unwillingness to place limits on Congress — which has failed to carry out its constitutional mandate to exercise the power to make the law, and not delegate that heavy burden. Just as Congress historically took advantage of the Court's lax federalism jurisprudence, administrative agencies have interpreted the Court's lax nondelegation doctrine as a license to extend their own power.

Limiting Congressional Power: The Garrett Case

Two cases this Term link the two lines of cases I have described above — the historically lax federalism cases that let Congressional power grow, and the historically-lax nondelegation cases that let executive agency power grow.

In October, the Justices heard oral argument in University of Alabama at Birmingham Board of Trustees v. Garrett, a case testing whether Congress had the power to enact the Americans with Disabilities Act (ADA) under Section 5 of the Fourteenth Amendment. For largely political reasons, the case is the hardest test the Court has yet faced regarding the reach of its federalism doctrine. The disabilities lobby is quite impressive; the cause of helping the disabled is certainly worthy; and 100 scholars filed a brief purporting to list laws that prove that there is "widespread and persisting" bias against the disabled. (Unfortunately, the brief fails to identify which laws have been repealed or are no longer enforced and, strangely, includes laws that require voters to be of "sound mind," but its heft alone is nevertheless certain to give the Justices pause.)

At least as interpreted by the Department of Justice and the courts, the ADA goes well beyond enforcing the constitutional rights of the disabled, to outlaw a vast swath of additional state conduct that would otherwise be legal. Pre-enactment hearings on the ADA show that Congress intended to eradicate not just unconstitutional discrimination against the disabled, but all differential treatment of the disabled. Congress equated disability discrimination with racial discrimination, a parallel the Supreme Court and the Constitution do not embrace.

Thus, the scope of the ADA is not congruent or proportional to whatever state constitutional violations persist and under Court doctrine, the ADA infringes state rights and the Court should so hold even in the face of enormous political pressure.

It would not be the end of protection for those with disabilities. A more tailored future ADA would pass constitutional muster. Moreover, the constitutional defect in the current, broad ADA does not extend to the many existing state disabilities statutes.

Limiting Executive Power: The Link Between Garrett and ATA

The ADA, as interpreted, also raises an issue of executive power. The administrative arm charged with carrying out the ADA's mandate, the Department of Justice (DOJ), has aggrandized its power to make the states subservient to its interpretation of the ADA's requirement of "reasonable accommodation"

DOJ has interpreted this language to require unreasonable, mandatory accommodation — issuing reams of detailed regulations that render compliance expensive, and give state and local governments little latitude to choose alternative ways, other than DOJ's, to accommodate the disabled. State agencies, including prisons, must hire ADA coordinators at state expense; worse, they fall under DOJ's mantle of power not only when they build new structures but also when they modify existing structures.

The ability of an administrative agency to aggrandize its power at the expense of states (and businesses) is also the issue at the center of another Supreme Court case this Term, Browner v. American Trucking Associations, which was argued on Tuesday, November 7. The case arose because the EPA (headed by Carol Browner) faced the prospect of losing control, in the near future, over the states' air quality as the states were nearing "attainment" of the national air ambient quality standards (NAAQS) set forth in EPA regulations. In response, the EPA raised the bar on the states, asserting the power to decide unilaterally how clean the air must be.

But that policy decision properly resides, under the Constitution, with Congress alone. Accordingly, the District of Columbia Circuit declared the EPA's unilateral grab for power a violation of the nondelegation doctrine–the doctrine that Congress, not the executive, has the exclusive power to make the law; and moreover, that power is permanently vested in Congress and cannot be delegated. The EPA may have come to understand the courts' willingness to permit delegations over the last seventy years as a license to simply make the law itself — but the Constitution says differently. Like DOJ interpreting the ADA, the EPA has lost sight of the fact that its powers are limited.

My view (and that of an amicus brief I and Professor David Schoenbrod filed in the ATA case) is that the nondelegation error affects only the regulations, not the statute. The Clean Air Act itself does contain an intelligible principle that limits the EPA's discretion; Section 109's "public health" standard requires the EPA to set the NAAQs to prevent only significant risk to health, not any de minimis risk. The problem is that the EPA has not followed the intent of Section 109 to cabin administrative decision-making. Again, as with DOJ, executive agency self-aggrandizement is the problem.

Were either political branch inclined to take constructive action to limit its own increasing abuse of its powers, the Court would not need to step in. But in light of former Courts' laissez faire attitude to these abuses, it is unlikely that either branch will. Indeed, it is common knowledge on the Hill that the last concern Congress has with any piece of legislation is whether it is constitutional, and that includes whether it burdens the states or violates the delegation doctrine. And the agencies, too, have developed an attitude that it is the courts' job to determine constitutionality as they barrel toward whatever is politically expedient. In the current dance of power, the Court is the only check that can bring Congress and the executive branch back to the limited sphere of power that was envisioned by the Framers.

Both Congress and the executive agencies have lost sight of the constitutional parameters set for them. Many of my liberal academic colleagues decry the current Court's move to draw and enforce the boundaries of power set out in the Constitution. But this Court is the best hope we have to bring the other two branches back within the boundaries that the Framers knew were necessary to deter abuses of power.

Professor Hamilton is Visiting Professor of Law at New York University School of Law and filed amicus briefs with the Supreme Court in both Garrett and ATA (the latter with professor David Schoenbrod). Her email address is

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