Did Congress Overdelegate?

The recent federal appeals court decision tossing out the Environmental Protection Agency's new air-quality standards raises issues that go far beyond the regulations involved: How far can a government agency exceed Congress's intent in enacting a law? And how much authority can Congress delegate to executive agencies?

EPA issued the new regulations in July 1997, intending to reduce the amount of ground-level ozone and soot in the air. The agency holds that the tougher rules are needed to protect people with breathing problems, the elderly, and children.

But the standards were extremely controversial from the get-go. Many counties now in compliance with clean-air regulations would be no longer. Industry groups and three states - Michigan, Ohio, and West Virginia - sued, charging that the regulations were based on bad science and that EPA didn't take the costs of the measure into account.

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Interestingly, the appellate court panel rejected those assertions, ruling instead, 2 to 1, that EPA had so overreached the intent of the 1990 Clean Air Act that the new rules were unconstitutional. In doing so, the court resurrected the "nondelegation doctrine," which has been largely dormant since the New Deal. That legal theory holds that certain issues are too important for Congress to delegate to executive-branch agencies. If broadly applied, the doctrine could throw into question a good deal of federal rulemaking.

For years, conservatives and libertarians have argued that Congress has unconstitutionally drafted laws that are far too vague and that give too much power to Washington's unelected bureaucrats. The complainers have a good point.

But the appeals court is turning its back on almost 50 years of precedents, including many Supreme Court decisions, to return to the older doctrine. The last serious application of the doctrine was when the high court ruled unconstitutional Franklin Delano Roosevelt's National Industrial Recovery Act, the centerpiece of his economic-recovery plan. That prompted FDR's famous attack on the court and his attempt to increase the number of justices, "packing" the court with judges friendly to his programs. The nondelegation doctrine soon fell into disuse.

The appeals court's about-face all but guarantees the matter will end up before the Supreme Court, which will have to clarify the ground rules, so to speak. The outcome could significantly change the way Washington governs.

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