Valuing the Deep State Part VII: Out-of-Control Bureaucracies

The full compilation of Francis Fukuyama's Valuing the Deep State series can be accessed here.

I’m resuming my series on “Valuing the Deep State” after a bit of a pause. On March 21 I will be delivering the annual Donald Stone Lecture to the American Society for Public Administration—the country’s leading professional association focusing on these issues—and these pieces will feed into that talk.

Up to now I’ve defended delegation and bureaucratic autonomy against many of the charges laid against it by conservatives. The latter argue that unaccountable bureaucrats are constantly making up new rules outside of the control of democratically-elected legislators, a tyranny that is both non-transparent and pervasive. I have argued that the U.S. system of government does in fact provide a number of mechanisms for controlling the bureaucracy, but that Congress has typically failed to exert the power that it actually possesses.

That doesn’t mean that these charges of bureaucratic overreach aren’t valid in many cases. I want to lay out four instances where the federal government has exceeded its authority, potentially to the detriment of citizens’ rights. There are many more cases of this at the state and local levels, and I suspect it is these lower-level rules that probably drive the general perception of an out-of-control government.

One notorious example of overreach was the case Sackett v. EPA. Michael and Chantell Sackett were a couple who bought a 0.63 acre lot for a house they planned to build in Priest Lake, Idaho, that was several lots over from the nearest body of water. At the start of construction, however, they were ordered to desist by the Environmental Protection Agency (EPA) and the Army Corps of Engineers, who asserted that the lot contained wetlands protected under the Clean Water Act. These agencies employed an extremely broad definition of wetlands and did not allow the Sacketts to contest the judgment in an administrative hearing.

The original statute left unclear what constituted “waters of the United States.” The EPA asserted an extremely broad definition: The land did not have to contain actual navigable waters, but could include dry land that was used by migratory birds. Indeed, the birds did not actually have to use the land; in the words of one commentator, it was enough that “a wayward goose glanced longingly at a given parcel of land” for it to be considered under federal jurisdiction. The Sacketts contested the EPA action in court in a case that went all the way to the Supreme Court. The latter decided it in favor of the Sacketts, but on narrow procedural grounds. The decision allowed the couple to contest the ruling administratively, but failed to define the appropriate scope of the EPA’s jurisdiction.

A second case is the expansion of the authority of Title IX, which I wrote about in an earlier blog post based on a book by Boston College’s Shep Melnick. An education bill passed in 1972 had a short clause that prohibited federal funding for entities that discriminated on the basis of gender. In the first couple of decades of Title IX’s existence, it was applied largely to varsity sports on campus, but in the 2010s it was expanded to cover sexual assault and sexual harassment on college campuses. By the time of the Obama administration, the Office for Civil Rights (OCR) in the Department of Education was issuing hundreds of pages of guidance on how schools and universities were to handle sexual assault cases. These new rules should have been promulgated under the Administrative Procedure Act and put out for notice and comment. But the OCR issued these rules in the form of “Dear Colleague” letters that were claimed not to have the force of law and were therefore not subject to the APA. Some of the new rules raised serious questions regarding freedom of speech on campus and due process for those accused of assault. Thousands of schools around the United States set up Title IX offices according to the federal guidance, for fear of jeopardizing their federal funding.

A third and more recent case concerns the Centers for Disease Control and Prevention’s (CDC) eviction moratorium during the Covid epidemic. At the beginning of the epidemic, the U.S. Congress passed the CARES Act, which included a rental eviction moratorium on properties with federal funding or federally-backed mortgages. Following the expiration of that moratorium in July 2020, the CDC then imposed a new moratorium through the end of the year, based on Section 361 of the Public Health Service Act. This was upheld by the pre-Amy Coney Barrett Supreme Court. The Biden administration issued a new moratorium lasting through October 2021 in counties with high Covid transmission rates, a ban that was struck down by the new conservative majority on the Court. The latter argued that the authorities delegated by the underlying statute simply did not encompass control over rental housing.

The final case was the one decided by SCOTUS in West Virginia v. EPA in the summer of 2022. The EPA sought to regulate carbon emissions in its 2015 Clean Power Plan, which drew authority from Section 111 of the 1970 Clean Air Act. The plan envisioned “generation shifting” to lower emissions sources, e.g., from coal to natural gas and from natural gas to alternative energy. This would require new investment in clean energy, or in emission allowances under cap-and-trade. Although the Clean Power Plan was rescinded by the Trump administration, it was ultimately withdrawn by the EPA because market forces on their own were motivating a shift to alternatives without the need for government regulation. Nonetheless, the Roberts court rejected the plan under the “major questions” exception to Chevron Deference on the grounds that the original statute did not envision giving the EPA authority over greenhouse gas emissions.

The liberal minority on the newly conservative court dissented from the decision on two separate grounds. The first was on the basis of a substantive reading of the original statute, whose language they argued did delegate authority over greenhouse gases. The second was a procedural one raised by Justice Elena Kagan in her dissent: She argued that the “major questions” exception was a squishy concept that the conservative majority was using to insert the court’s opinions in place of those of the expert agency. In line with the original Chevron Deference decision, she argued that courts were less qualified to make such decisions than agencies.

The first two cases—those of the federal waterways and Title IX—do seem to me to be unjustified expansions of federal authority. I like the underlying policies of the CDC and West Virginia v. EPA cases a bit better. But I grant that, procedurally, these federal agencies were stretching their authority in ways that were hard to justify given the language of the original statute. The need to regulate carbon emissions is a matter of some urgency, and our polarized Congress is not remotely up to the task of acting on this issue. So while the theory tells us that Congress has the legitimate authority to make policy in this domain, it is easy to see why agencies and courts seek to move ahead in any way they can.

However, there’s a larger point to be made about our political system. The bureaucracy is not “out of control” across the board. We have designed a set of checks and balances to prevent the administrative state from dictating policy, and in the latter two cases those checks were effective. You might not like the substantive outcome or the conservative court that produced it, but this is the way the system is supposed to work.

We have, however, a deeper problem that the system does not seem capable of fixing. SCOTUS is not the only judicial actor in the country; state courts and our tradition of common law can also create monsters that are difficult to control. This will be the subject of a subsequent post.

Francis Fukuyama is chairman of the editorial board of American Purpose and Olivier Nomellini Senior Fellow and director of the Ford Dorsey Master’s in International Policy program at Stanford University’s Freeman Spogli Institute for International Studies.

The full compilation of Francis Fukuyama's Valuing the Deep State series can be accessed here.