Why Congress by Philip A. Wallach;

Author:Philip A. Wallach;
Language: eng
Format: epub, pdf
Publisher: Oxford University Press USA
Published: 2023-06-15T00:00:00+00:00

Policymaking under Gridlock

As we have seen, each party has accused the other of making policy in courts because they could not command majorities in Congress. These complaints capture a real dynamic, one subtler than denunciations of “judicial activism” suggest. Typically, Congress is aware of some important problem—often caused by previous congressional actions—and legislators then introduce and debate legislation to address the problem, but they lack the wherewithal to shepherd their bills through to passage. When Congress fails to act, the executive branch steps into the vacuum, and the judiciary is forced to either acquiesce to or reject policies, even if no legislative replacements are in the offing.

Now, legislating is supposed to be hard in our constitutional system. And those who hold our contemporary legislature in low regard may say that the less legislating Congress does, the better for the rest of us. But in the contemporary era, in which dozens of statutes have created a reservoir of vaguely defined powers at the executive’s disposal, stalled legislation does not freeze the policymaking process. Instead, the president and executive branch agencies take initiative to fill the void, creatively interpreting existing statutory authorities to justify their actions. President Obama famously declared, “I’ve got a pen, and I’ve got a phone,” giving him the power to set ambitious policymaking efforts in motion without any cooperation from Congress.42 The president’s opponents invariably denounce such actions but rarely can pass legislation to decisively clarify or limit executive branch powers. Instead, the most important form of opposition comes from litigation challenging the legality of the executive branch’s action. Statutory interpretation and administrative law, two subjects that sound deadly dull to most people, form the front lines of contemporary policymaking battles. If courts stymie the executive branch, that is not necessarily the end of the story; subnational policymakers (including state attorneys general43) may step forward to fill the gap, or trial lawyers acting through the tort system may come to shape their own policy regime.

American climate change policy presents a clear illustration of the shortcomings of trying to fashion policy without congressional action.44 Congress took some modest first steps on climate issues, asking the Environmental Protection Agency (EPA) to formulate a plan in 1987 and unanimously ratifying a nonbinding United Nations agreement in 1992. But it declined to create a regulatory scheme for carbon emissions in its Clean Air Act amendments of 1990 and overwhelmingly rejected efforts to join a binding treaty in 1997. During the George W. Bush administration, the EPA rejected environmental groups’ petitions for rulemaking under the Clean Air Act, explaining that the statute was a poor fit for addressing climate change—but the Supreme Court rejected the agency’s reasoning in Massachusetts v. EPA (2007).

It thus fell to Barack Obama’s administration to devise an administrative response to climate change. Since a new statute would be better suited to deal with carbon emissions, many hoped that initiating executive action would force disparate factions to compromise on new legislation. House Democrats passed an ambitious cap-and-trade bill in 2009,

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