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Executive Orders and Smart Lawyers Won’t Save Us

We can’t cede social change to well-meaning experts. Especially in an era of hostile courts, politics, not law, is the only way forward.

Supreme Court Justices John Roberts, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh look on as President Donald Trump delivers the State of the Union address in the chamber of the US House of Representatives on February 5, 2019 in Washington, DC. (Alex Wong / Getty Images)

It’s news to no one that Congress is broken. Owing to partisan deadlock and super-majoritarian rules — including the legislative filibuster and equal apportionment of the Senate — our national legislature is largely incapable of addressing national (let alone international) problems. From immigration to climate to guns, the odds of comprehensive legislation are basically zero. And while one can hope for modest reforms, even there, the emphasis is on hope.

Given this state of dysfunction, it’s natural to look for alternatives. It should come as no surprise, then, that we get appeals to the states to take the lead on energy efficiency, and to private employers to help reduce income inequality. Most loudly, though, we hear pleas to the most prominent actor within our political system, the president, to “get something done” on this issue or that. As a result, much of the story of the contemporary presidency has consisted of attempts to implement national policies in Congress’s stead, whether in the form of President Obama’s deferred action programs or President Trump’s border wall (immigration), Obama’s Clean Power Plan (climate), or various proposed and actual executive orders by Presidents Obama and Trump in response to mass shootings (guns).

Support for executive action varies, predictably, by partisan affiliation and current White House occupant. And so, with Democrats perhaps poised to retake the presidency, we are experiencing a new, predictable wave of executive-action enthusiasm among liberals and the Left. Perhaps the best example, both in terms of quality and typicality of sentiment, is the recent American Prospect series “The Day One Agenda.” In a series of well-researched, well-argued articles, contributors to the series set out an ambitious set of policy reforms, ranging from student debt cancellation to carbon reduction to postal banking, all of which could be brought about, the contributors insist, through the exercise of existing statutory authority. In other words, even if Congress remains inert, a progressive president could, the series argues, bring about much, if not all, of the change that we need.

The inclination for projects like this makes sense. The nation (and the world) faces enormous problems that Congress is unwilling or unable to solve. Surely some other state actor must be able to pick up the slack. The problem is, they can’t — or at least not at anywhere near the necessary scale. Worse still, by pretending otherwise, we are putting off the hard work of fixing our dysfunctional legislature, which is to say our broken democracy.

Statutory Interpretation

To see the limits of executive action, one must first understand the strategy. Take one of the more intriguing proposals in “The Day One Agenda” — that a president should, acting through his or her subordinates, cancel nearly all student debt. First advanced by Luke Herrine of Yale Law School, the argument is, very roughly, that the secretary of education can be authorized under the Higher Education Act to “compromise, waive, or release” claims against student debtors. As Herrine notes, the secretary’s grant of discretion is not textually constrained — there are, for example, no specific reasons the secretary must invoke before “waiv[ing]” or “releas[ing]” a claim.

Absent some such specific constraint, Herrine continues, the executive branch enjoys nearly unreviewable discretion in determining which claims to decline to pursue under current Supreme Court precedent. Taken together, Herrine concludes, these observations support a reading of the secretary’s authority that would permit him or her to “waive” or “release” all claims against the student debtors over which the secretary has enforcement authority — which is to say, all student loans directly issued by the federal government (according to Herrine, 95 percent of outstanding loans).

Herrine’s argument is both extremely simple and extremely clever. He identifies what is, on its face, a very broad grant of discretion to an executive branch official, and then urges that official to exercise that authority in a surprising but straightforward way. As Herrine concedes, a grant of authority to settle student debts might seem “mundane” at first pass, intended to permit the secretary to “waive” or “release” claims against individual debtors, in cases where enforcement would be futile or especially harsh. But, as Herrine correctly points out, nothing in the statute explicitly requires the secretary to make such decisions on an individualized or case-by-case basis. To the contrary, all the statute says is that the secretary may “waive” or “release” student debt claims, and if we take the statute’s language seriously — as the Supreme Court has, for years, insisted we must — then the fairest reading of the Higher Education Act is that the secretary may “waive” or “release” student debt claims. All of them. For whatever (nondiscriminatory) reason.

Herrine’s proposal is an instance of a general strategy used often since the later Obama years. That strategy is to identify broadly phrased grants of authority to the executive branch within existing statutes, and then to attempt to use that seemingly broad authority to address problems or concerns not necessarily contemplated at the time those statutes were enacted. In this respect, Herrine’s proposal and others like it are very much of a piece with the contemporary approach to statutory interpretation, advocated most prominently by conservative judges like Justice Scalia or Justice Thomas, according to which the content of the law is a function of what the statutory language specifically says, as opposed to the general goal or problem Congress might have had in mind when enacting that language.

It may seem like Herrine’s argument should therefore be a clear winner. The problem, however, is that courts increasingly seem not to be taking that language-centric approach — in precisely the context where they would need to in order to make this type of creative executive action work.

The “Anti-Novelty” Doctrine

The difficulty for creative arguments like Herrine’s is that many courts, including the Supreme Court, have become skeptical of creativity as such. Sometimes referred to as the “anti-novelty” doctrine, many contemporary judges, especially conservative ones, regard claims of authority as questionable unless someone has claimed that authority before. The basic idea is that if a law has been around for some time, a claim today to have “discovered” some new authority in that law is obviously suspect. In other words, surely if the law really provided that authority, someone would have noticed and claimed it already.

Courts invoke the anti-novelty doctrine most explicitly in constitutional cases. In Free Enterprise Fund v. Public Company Accounting Oversight Board, for example, Chief Justice Roberts concluded that Congress’s mechanism for removing members of an accounting oversight board unduly constrained the president’s authority to manage the administrative state. The chief justice reasoned in part that this “novel” arrangement “telling[ly]” lacked historical precedent. This suspicion of novelty carries over to statutory cases as well.

In FDA v. Brown & Williamson Tobacco Corp., the FDA claimed authority to regulate tobacco products on the grounds that the Federal Food, Drug, and Cosmetic Act empowered it to regulate “drugs” and “drug delivery devices” — with “drug” defined capaciously to include “articles (other than food) intended to affect the structure or function of the body.” Reasoning that nicotine was plainly “intended to affect the function of the body,” the FDA had concluded that cigarettes and other tobacco products constituted “drug delivery devices.” Notwithstanding this straightforward interpretive argument, the Supreme Court held five-to-four that the FDA lacked the authority it claimed. According to the conservative majority, the FDA’s claim was not only mistaken but implausible, in part because the Federal Food, Drug, and Cosmetic Act had been on books since 1938, but only decades later, in 1996, was the FDA claiming the authority that it was claiming.

FDA v. Brown & Williamson is especially relevant given its underlying political dynamic. In 1996, a divided government made the enactment of comprehensive tobacco legislation impossible. Rather than be frustrated by an uncooperative Congress, however, President Clinton urged the FDA to assert jurisdiction over tobacco products pursuant to a novel but entirely plausible reading of its existing statutory authority. If anything, it was difficult not to read the text of the statute as consistent with the FDA’s claim — who could argue that nicotine was not a “drug”?

The answer, it turned out, was a conservative majority of the Supreme Court.

Judicial Hostility

To be clear, the anti-novelty doctrine is a bad interpretive doctrine. As law professor Leah Litman has argued, there are all kinds of reasons government actors might not have previously claimed authority beyond the belief that they lacked it. Demanding procedural requirements and limited legislative/executive resources keeps government actors from doing all sorts of things they might otherwise do. Similarly, political pressures prevent federal officials every day from enacting policies they are legally authorized to enact. The FDA’s failure to assert jurisdiction over tobacco products prior to 1996, for example, was surely attributable to the political clout of the tobacco industry, at least in part.

Why, then, does the anti-novelty doctrine persist despite these straightforward objections? Most obviously — and most cynically — anti-novelty is a small-c conservative interpretive principle that appeals to small-c conservative judges. The anti-novelty doctrine is, quite literally, an interpretive presumption against significant change. For judges opposed on normative grounds to significant change, a doctrine that rationalizes and codifies that attitude is going to make a great deal of sense.

Less obviously and more charitably, adherence to the anti-novelty doctrine reflects the belief that major policy changes ought to be accompanied by changes to the relevant written law. With the decision to regulate tobacco, for example, the clear message of FDA v. Brown & Williamson was that such a policy shift should be made through new legislation (as it ultimately was, though not until 2009). This sort of insistence upon congressional decision-making expresses a commitment to what lawyers call “non-delegation.”

The idea, put simply, is that the Constitution assigns to Congress, and not the president, the authority to enact new laws, and that for Congress to grant to the president sweeping policymaking authority would be inconsistent with that constitutional assignment. Courts have famously been unwilling to declare such grants of authority constitutionally invalid. At the same time, they have been more than willing to read such grants in implausibly cramped ways — as in FDA v. Brown & Williamson — as a way of limiting delegation indirectly.

Whatever one thinks about this principle, anti-novelty is with us for now. With Chief Justice Roberts and Justice Kavanaugh as the doctrine’s strongest proponents, the Supreme Court is exceedingly likely to invalidate creative executive action by a Democratic administration on anti-novelty grounds.  Absent changes to the court’s composition, then, a bold “Day One Agenda” seems doomed from the start.

In considering this concern, political scientist Scott Lemieux writes in his contribution to the series that the prospect of judicial hostility provides reason for “concern, but not defeatism.” He argues that although bad legal reasoning will prevail for “issues that are a top priority for elite Republicans,” with “lower-order issues,” better legal arguments at least stand a chance.

Lemieux’s distinction between more and less important cases is fair. The Supreme Court only hears eighty-some cases per year, which means that low-visibility executive action would likely evade Supreme Court review. Yet Lemieux’s defense reveals a mismatch between the implicit promise of “The Day One Agenda” and the reality.

By Lemieux’s own assessment, aggressive executive action by an incoming Democratic president would likely result in modest but valuable policy reforms surviving or escaping review, but at the same time larger, more sweeping changes reliably being struck down by an unsympathetic judiciary. On the one hand, then, “The Day One Agenda” is a valuable resource, outlining a strategy worth pursuing — modest gains are, after all, gains. On the other hand, to the extent “The Day One Agenda” was meant, as it seemingly was, to assure us that an obstructionist Congress would not be that big of an obstacle — and that a savvy president would, on his or her own, be able to achieve major reforms — we should be skeptical.

The Way Forward

The American Prospect has been fairly open in its advocacy for Elizabeth Warren in the 2020 Democratic primary. There’s nothing wrong with that sort of advocacy. Still, reading “The Day One Agenda” in this context helps to situate it in the broader Sanders vs. Warren debate. One recurring argument in that debate has been that Warren has a much more detailed understanding of the president’s statutory authority than Sanders, and so would be more capable of carrying out an ambitious executive agenda. Setting aside the plausibility of that argument — surely a President Sanders, like a President Warren, would rely upon legal staff to help make such judgments — “The Day One Agenda” can be read as an effort to highlight Warren’s (alleged) comparative advantage in getting things done.

Whatever the motivation, “The Day One Agenda” reflects a tremendous and pervasive optimism about clever “solutions” among Warren’s natural support base. The highly credentialed are, unsurprisingly, predisposed to think that bad situations can be managed or avoided through informed or creative reasoning. So it should also be unsurprising that highly educated voters have been drawn to an impressively credentialed former legal academic who promises to solve this nation’s problems through policy and legal expertise. The problem, of course, is that we’ve tried this before.

President Obama, himself an impressively credentialed former legal academic, had only modest success in his attempts to make policy via executive action — for example, both his more ambitious deferred action immigration program and his Clean Power Plan were blocked or delayed by court challenges. That experience should give us reason to doubt that a broken Congress really can be cleverly sidestepped.

So, what to do? It seems that the only real answer is to fix our broken legislature. And, in contrast to Warren, Sanders does have a plan for that, albeit not an especially clever one. Sanders’s plan is based on political hard work and brute force, building and sustaining a mass movement to force government actors to enact ambitious policies.

We can see a microcosm of such a movement in the shape of the Chicago Teachers Union, which just secured important concessions from public officials through a popular strike. We see it in the recent mass demonstrations on climate. We see it abroad in places like Santiago, Beirut, and Hong Kong. Whether that sort of mass movement can be broadened and sustained in the United States over the course of a presidency (and beyond) remains to be seen.

But while Sanders’s strategy may not be easy, it at least addresses the actual problem. Moreover, it seems to be our only hope.