Who needs Constitutionality anyway?

What exactly is the scope of executive power? We heard about it during the warrentless wiretapping controversy and a myriad of other constitutional faux pax of the current administration, but it seems now that there’s another realm of vast confusion.

I’ve been in law school for a year and a half and I had no idea what role the “Code of Federal Regulations” even played in our jurisprudential system. I had read them, cited them even. But I understood even the gist only in digging around my last clinical project: legislature passes law, executive enforces. I’d know it since civics in middle school. But it’s not as simple as it sounds.

The process is unclear: what is “enforcement” anyway? I guess I always pictured it as a kind of police power, and, given my ADD proclivities, never made a connection to the Cabinet, even though I knew that the Cabinet was enforcement in some sense. Yet the nuts and bolts of how the Cabinet does any enforcing almost shocked me.

Legislature passes law: Congress spits out a statute that says “thou shalt not X.” Then the Cabinet department, designated by the statute (although it’s not clear that they have to be), writes “regulations,” which look like mini-statutes. These regulations direct the department in enforcing the law. Supposedly.

But what actually happens when you violate a regulation? When you violate a criminal statute, you go to jail, pay a fine, etc. When you violate a civil statute, someone can sue you under the statute. But when you violate an executive regulation, a whole new mess of things could happen.

They could fine you, as the Transportation Security Administration is prone to do if you carry your pocketknife through the terminal checkpoint at SFO. They also seem to think they could sue you based on a violation of their regulation. Some regulations seem to provide federal criminal penalties.

What I didn’t find while surveying the regulations was any constraints – or any reference to constraints – on the executive branch’s creation of regulations. It looks like all they have to say is “this is to enforce statute x,” and suddenly they can punish you. In a recent letter to our client, the TSA treated a citation to a statute by a regulation as enough to claim that the regulation enforced the statute. The regulation (as applied by the TSA in the letter) didn’t actually address the same tortfeasor as the statute it cited. It covered a whole different category of actions than the statute it cited. And yet the letter threw the regulation out like a magic carpet that carried them all the way to several thousand dollars in statutory civil damages.

Maybe it’s my lack of Administrative Law experience speaking, but this just doesn’t add up. Certainly the Constitution requires some tailoring of regulations to at least the stated purpose of the statute. Certainly the law provides some check on the exercise of executive authority through regulations. Certainly there is some system out there that constrains the application of any regulation a Department can think up. It can’t be that the administration could have bypassed all the judicial hullabaloo of warrantless wiretapping by having the Department of Homeland Security issue a regulation under some random statute that says “you must submit to warrantless wiretapping at DHS’ discretion.”

Then again, maybe not.


Jessica, if you have time to take or audit Admin Law, by all means do so -- it's fascinating. As a short answer to your question, some academics, such as Chicago's Richard Epstein, do believe that the entire U.S. administrative state is illegitimate and an unconstitutional delegation of Congress' power to legislate (but they are in the minority). The problem is, without executive agencies, Congress would have to decide on a whole gaggle of nitty gritty details involved in running the country by itself and our legislative mechanism would grind to a halt.
You are right that a regulation promulgated under a statute may in fact stray too far afield. But it is too quick to jump to the conclusion that the executive branch's power to create regulations is unfettered. (Agencies actually perform a mix of all three functions of government, not just executive.) Agency action can be reviewed by the courts in D.C. under the Administrative Procedure Act of 1946. As the APA has been interpreted, agencies cannot take action that is "arbitrary and capricious" (§706), and generally need to justify their major rulemakings by a record with public opportunity for notice and comment. Then again, they are given a wide leeway by the courts in interpreting ambiguous statues (i.e. Chevron deference).
Keep in mind also that the political process plays a big role in checking the power of the agencies.
Do you know, so far, of any court-based challenges to these TSA regulations? Any comprehensive studies on how they're being applied?

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