|Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal.|
by Vin Suprynowicz
November 11, 2000
Though it can be unwise to predict the court's stance based solely on the justices' questions, it was a fairly bad sign when members of the U.S. Supreme Court expressed skepticism Tuesday about the idea that government regulators might consider the costs not just the purported health benefits of new clean air regulations.
The court was hearing oral arguments in the twin cases Browner vs. American Trucking Associations and American Trucking Associations vs. Browner, in which the truckers and a host of business groups filing amicus briefs seek to restrict the power of the Environmental Protection Agency to set and enforce "clean air" standards which many contend are virtually "plucked from thin air," without firm scientific evidence as to the (supposedly minuscule) levels at which soot and ozone actually cause health damage.
The truckers' clear implication? Although the air is now clean by any historical standard, the EPA keeps setting arbitrary, ever-lower limits just to keep itself in business.
In the course of this suit a ruling is expected next July the court could also decide, finally, the extent to which Congress is free to delegate to non-elected bureaucrats the power to make up such laws, under a vague edict like the one which now instructs the EPA to protect the public health "with an adequate margin of safety."
Obviously, OSHA, the FCC, and numerous other Washington regulatory storm troopers will feel the chill if the court rules that Congress must actually "make all laws which shall be necessary and proper," as required by the Constitution not merely give unelected bureaucrats carte blanche to dream them up as they go along.
That's why the friends of the court filing briefs on the truckers' side now include the U.S. Chamber of Commerce, the Manufacturers Alliance, the American Institute of Certified Public Accountants, the Association of Physicians and Surgeons, and even the American Farm Bureau and American Crop Protection Association.
"Every one of these businesses undoubtedly has its own weird, can-you-believe-this story to tell about trying to decipher, adhere to and then pay for a Washington regulation," editorialized the Wall Street Journal in its coverage of the case this week.
Solicitor General Seth Waxman asked the justices Tuesday to reverse a lower court ruling that said the EPA went too far in adopting tougher clean-air standards in 1997. The appeals court said the EPA overstepped its authority by interpreting the Clean Air Act's 1990 amendments "so loosely" that it amounted to unlawful delegation of Congress' power. The lower court said the EPA's interpretation left it free to set almost any standard.
Justice Antonin Scalia asked how broad the agency's authority reaches when it sets air-pollution limits. "How do you decide how much risk is too much risk, or is that just up to the agency?" Scalia asked Waxman. "You still haven't given me a criterion of where you stop."
But Scalia also challenged the assertion of Edward Warren, attorney for the truckers, that a cost-benefit analysis would necessarily set any clearer standard. "Why does it give you a standard to address the economic effects of the thing?" he asked.
"I've listened to a lot of vague language from you and I don't understand what it is you're saying," added an equally skeptical Sandra Day O'Connor.
Not since 1935 has the Supreme Court thrown out any set of federal regulations on grounds that Congress improperly handed an agency too much power. But the Constitution is clear federal laws are supposed to be deliberated in detail and enacted by our elected representatives themselves, not handed off the way a distracted socialite orders the nanny to bathe the children and put them to bed so she won't be late for the hors d'oeuvres.
To blithely rule that Congress has the power to "delegate" unlimited lawmaking authority to anyone it pleases would set a dangerous precedent indeed didn't the members of the first French republican assembly eventually "delegate" all their powers to Robespierre, and finally to the dictator Napoleon? Didn't the German Reichstag "delegate" all its powers to Chancellor Hitler ... eventually finding so little left to do that it closed down entirely?
The EPA is an agency of the presidential branch. And the job of the Supreme Court is to make sure the balance of powers between the branches is maintained not to allow it to tumble into tyranny merely because the representatives in their laziness "sign off" on the arrangement.
If the 535 members of Congress don't have time to personally read, analyze, debate, and raise their hands to endorse each paragraph of the thousands of pages of new regulations pouring forth from the malarial marshlands of the Potomac every month, the answer is clear: Reject what you cannot wade through! Repeal the stuff en masse! Break out the marshmallows, and have a bonfire!
How are citizens supposed to understand and obey laws so numerous, intricate, costly, and incomprehensible that our delegates themselves cringe at the thought of merely being required to read them?
And so the court should rule.
(The cases are Browner vs. American Trucking Associations, 99-1257, and American Trucking Associations vs. Browner, 99-1426.)
Vin Suprynowicz is assistant editorial page editor of the
Las Vegas Review-Journal.
12 nov 2000