Are Federal Agencies Consitutional?
There is an argument frequently propagated that agencies are effective to regulate industries because they are experts on the issues they were created to regulate. The argument states that it is a rightfully created organization; agencies are only acting as the delegated representation of the citizenry whose wishes by proxy are fulfilled in delegated authority. This argument is a cloak to disguise the legitimacy of the agencies dated back to their creation, which is a clear violation of the authority of the branches of government assigned by the Constitution without an amendment to reflect the change.
The Constitution clearly lays out the powers for each branch of the federal government. These powers are solidified and unmovable. Any action outside of the confines of the Constitution by the federal government lacking authority for the action is struck down in adjudication definitively. This is an accepted principle regarded as the basis for judicial review established in Marbury v. Madison, 5 U.S. 137 (1803). The only way to circumnavigate the structure the founding fathers laid out in the Constitution is to edit the document itself in an amendment, which must pass both the House of Representatives and the Senate by two-thirds majority and be signed into law by the President, a process conveniently skipped in creation of the agential state.
The first of these infringements was the creation of the Interstate Commerce Commission (ICC), an organization created in 1887 to regulate railroads in response to monopolistic behavior in rates and treatment to its customers, especially farmers. The pressure from the Populist movement to make selling crops affordable with lowered freight costs was so great that the country turned a blind eye to the blatant constitutional violation. The ICC was given power to set rates (legislative powers) and enforce the regulations it created (executive powers). As with many of the agencies in modern day, the ICC operated under the executive branch. The result is the delegation of legislative authority from the Congress to the executive branch. It restructured, even in a small scope related to railroad regulation, the powers laid out in the Constitution. It is the role of the legislature to introduce laws. The executive branch is the enforcement arm and co-signer to the acts. The ICC stripped the legislative branch of its powers, transferring them to the executive branch without the passage of an amendment to change the structure of power in the Constitution. This faux authority was then passed onto the Department of Transportation when the ICC folded to account for travel by more means than just railroads.
The ICC was also given the power to adjudicate related matters. While these decisions rendered can be challenged outside the confines of the agency, the first destination is within the very agency who is a party in the proceeding. These administrative judges are meant to be impartial from the rest of the agency departments, but their employers are the same entity. In othering proceedings, that dynamic would be seen as a conflict of interest. Even if the judges were completely impartial, their authority is not rightfully given. They work under the executive branch as does the rest of the agency’s employees. Just like the rest of the agency, they are subject to orders by the President, including hiring and firing. So, on the matters relating to railroads, the judicial branch has had its powers stripped to only hearing cases appealed from administrative court. The administrative court itself only grants judgements if the regulations are applied arbitrarily and capriciously, notably not judging upon the validity or constitutionality of the regulations themselves. To get the regulation interpreted in that way, it must be escalated, an added layer hindering the ease of what should be an easy process just about any citizen can do in without unnecessary steps. Furthermore, this transfer of power takes away individual matters that the judicial branch would typically hear, especially the local courts of common pleas which never hear these cases as a result. Again, this power changed what was stated in the Constitution. The executive branch is not granted the power to adjudicate whatever. This power was delegated to the executive branch by Congress’s passage of law only by simple majority and the President’s signature. An amendment is needed to transfer this balance of power among the three branches.
What’s more in the adjudication aspect is that the Supreme Court has no say until it is challenged in a lawsuit. At first, the Supreme Court erred in the decision rendered in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The decision treated the regulations imposed by agencies as extensions of executive orders; they regulate ambiguity in legislation. But these agencies acting in ambiguity are given the broad power explicitly in the legislation that created them. It is not a clarification given as executive orders about legislation are meant to be but rather the blanket power to create, enforce, and adjudicate new laws. However, even if that argument is accepted, it is still not the executive branch’s prerogative to adjudicate based on its executive orders. The Chevron decision also stated that courts must defer their decisions to the “experts” in the agencies, deferring decisions to precedents set in the administrative courts rather than the judicial branch. On this issue, the Supreme Court corrected itself in Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244 (2024), stating that courts must no longer defer to administrative renderings as precedent. It is a step in the right direction to overturn the Chevron decision, but it does not solve the problem at hand.
Clearly, any aspect of an agency in the executive branch must only perform the duties given to the executive branch. It cannot act as the legislature, and it cannot act as the judicial branch. Yet, the agencies as they operate today still violate this principle. It may seem like a small issue on the surface until one observes how many agencies violate this constitutional principle. The USDA, FSA, NRCS, RMA, FSIS, USPTO, NOAA, DOHA, Department of Education, DOE, FDA, DAB, CMS, OMHA, CBP, ICE, TSA, HUD, IBLA, IBIA, DOI, EOIR, DEA, ATF, BRB, ARB, DOL, FAA, FMCSA, PHMSA, IRS, OFAC, BVA, CFPB, CPSC, EPA, EEOC, FCC, FDIC, FERC, FLRA, FMC, FMSHRC, FRB, FTC, ITC, MSPB, NCUA, NLRB, NTSB, NRC, OSHRC, OCC, PRC, SEC, SSA, and even the USPS all fall under the executive branch but have powers that are usurped from both the legislative and judicial branch. While Loper Bright was a positive step to reigning in the bureaucratic state, the complete abolition of any violations of this non-delegation doctrine is the only way to proceed.
