Biden needs battle plan to defend government

Some conservative legal thinkers speak of a “Lost Constitution” or “Constitution in Exile.” By that they mean the Constitution as it was understood before President Franklin D Roosevelt’s New Deal helped form the modern regulatory state.
Their Constitution in Exile would invalidate key parts of contemporary government. Some conservatives want to revive the long-dead “nondelegation doctrine,” which was once taken to forbid Congress from granting broad discretion to regulatory agencies. The Supreme Court made a strong movement in the direction of the Constitution in Exile in its most recent term, when it ruled that the Consumer Financial Protection Bureau may not be made independent of the president.
The court stopped well short of upending the regulatory state. But it was just a preliminary skirmish. Bigger battles are brewing. Those who want to defend modern government — including Democrats if they regain power in November — will need to think hard about appropriate reforms if the Supreme Court begins to invalidate larger features of the US government as it exists today.
A Supreme Court bent on resuscitating the nondelegation doctrine would put important parts of the Clean Air Act, the Occupational Safety and Health Act and the National Traffic and Motor Vehicle Safety Act in jeopardy. Those who believe in the Constitution in Exile also have trouble with the idea of independent agencies, such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission (FCC) and the Federal Trade Commission. The president has limited control over the heads of such agencies; he cannot fire them simply because that’s what he wants to do. Critics of independent agencies argue that the Constitution gives the president unlimited power to remove and control officials who are in charge of implementing federal laws — a power that, in their view, the Constitution grants to the president alone and that Congress cannot compromise. If the Supreme Court agrees with them, American government is in need of radical reform — by constitutional mandate.
The Federal Reserve Board might become the president’s pawn. That would be a problem because it could end up playing partisan politics with the economy and perhaps ensure a sitting president’s re-election. And if the president had full control over the FCC, he could undermine freedom of expression by ordering the agency to punish his political enemies.
The court did not go so far as to say that independent agencies are unconstitutional in its ruling last month on the Consumer Finance Protection Bureau, an agency created by Congress in 2011 to guard against abuses by banks and credit-card companies; it left that question for another day. But it concluded that because the CFPB is headed by a single person, and not a multi-member commission, it cannot stand.
Let’s put the technicalities to one side and note two pressing questions: What’s the legal status of the CFPB, exactly? Should Congress try to change it?
The first question is easy. All of a sudden, the CFPB is an executive agency, just like the Departments of State, Treasury and Transportation. It is fully under the president’s control, whether his last name is Trump or Biden. A less obvious point is that the CFPB’s rule-making activity can be made subject to the process of review overseen by the Office of Information and Regulatory Affairs, which is part of the Office of Management and Budget. In practice, that means that the CFPB won’t be able to issue new rules unless they survive careful scrutiny, usually including sustained attention to both costs and benefits.
—Bloomberg