Cline on the Constitution – Administrative Agencies and Universal Injunctions

What’s the deal on Separation of Powers?  

President Trump, in exercising the powers of his office over Federal Administrative agencies, has put news patrons into paroxysms of wailing, weeping and gnashing of teeth.  Such audacity. Woeful moans echo down the endless, dark hallways in Washington D.C. as he moves to reign in so-called “independent” agencies.  All the blubbering, crying and runny noses aside there are important Constitutional questions generated by his actions.  Where are the lines between the three “co-equal” branches of government?  And when does one branch intrude upon the jurisdiction of the other(s)?

Here are the Constitutional basics:   

Article II provides “The executive Power shall be vested in a President of the United States of America.” 

Article I states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” 

And finally, Article III states, “The Judicial power of the United States shall be vested in one supreme Court, and (this is important) in such inferior courts as the Congress may from time to time ordain and establish.”  These inferior courts (established by acts of Congress) are the lower and middle rungs of the federal judicial system, the District Courts and the Courts of Appeal.

There is no constitutional provision establishing administrative agencies. Congress, uses its power to legislate to create administrative agencies. Legislation that creates an agency and defines its powers is known as “enabling legislation.” However, Congress doesn’t administer the agencies.  Once created, administrative agencies fall into and under the Executive Branch. As such they are under the supervision of the President and subject to his exercise of the Executive Power.  

The need for so many of these departments/agencies is itself a subject matter of vigorous debate.  Since the birth of the republic, administrative agencies have grown in number and size to the point they affect every aspect of every life in every community in the country.  Unfortunately, enabling legislation creating the agencies rarely has “sunset” provisions.  These agencies live on and on, Zombie like, whether they are useful or not, whether they continue to pursue their original purpose or not.  

While Congress and the President can “delegate” certain functions to the agencies, the Courts have fashioned a “non-delegation” doctrine to preserve the integrity of the Separation of Powers. It is a basic principle is that an essential function of one branch of government cannot be “delegated” to another branch. 

Can Congress, consistent with the Constitution, create “independent” agencies, i.e. agencies not subject to supervision by anyone, including the President.  It’s often justified as a means of making the agencies “independent of politics.”  Truth is every agency quickly becomes political with political aims.  But the worse kind of political.  The kind answerable to no one, especially the American public and American tax-payer.

Does not Congress in creating such agencies thereby violate the Separation of Powers doctrine, by proscribing the Executive Power of the President?  As Justice Scalia said in a dissenting opinion in 1988, (Morrison v. Olso) that when the Constitution says, “the executive power shall be vested in a President” this “does not mean SOME of the executive power, but rather ALL of the executive power.”

A 1933 case, “Humphrey’s Executor” is usually the precedent relied on for the existence of so-called “independent” agencies. The case is of questionable viability today.  In fact, the winnowing of the decision has been going on for some time. In a 2020 case, Seila Law, the Supreme Court refused to apply the precedent to the Consumer Financial Protection Bureau.  Chief Justice Roberts wrote that the Humphrey’s decision “has not withstood the test of time.”  Of “Humphrey’s Executor,” Justice Thomas wrote that the decision “poses a direct threat to our constitutional structure . . .”  Justice Gorsuch was more explicit, “In a future case, I would repudiate what is left of this erroneous precedent.”

There is simply no authority under the Constitution for Congress to create such “independent” agencies and make the personnel employed there unaccountable to an executive authority.  

Consider for a moment.  Could Congress legislate into existence an entire new branch of government?  A branch “independent” of the others?  Can Congress in a pique of institutional jealousy, create “independent” agencies not subject to supervision from an Executive Authority? And then, can Federal Courts take over the Executive function of the Presidency?

And what of all the injunctions?  Every action of the President, whether trimming the bloated staffing of an agency, suspending wasteful spending, or ridding the nation of despicable foreign criminal gangs, is met by a battalion of lawyers and a cadre of largely clueless federal judges anxious to block any bold executive action.

When some lower court federal court judge decides to substitute his or her judgement for that of the Chief Executive of the United States, indeed, render judgements seeming to require the President to justify to him or her its executive decisions and actions, is that not violating the Separation of Powers?

As the President himself has stated, everyone expects some federal district court judge somewhere will grant a universal injunction stopping an Executive action unless and until it can be brought before the Supreme court.

There is a rather obvious problem.  We have over 600 federal district court judges in the country.  Is it now necessary to get pre-approval for any executive action by all 600?  Not exactly how the framers envisioned the judicial role.  

The granting of preliminary injunctions, nationwide, by some backwater federal district judge is especially pernicious.  It is done without a trial, without the development and testing of evidence, the cases are not fully briefed, witnesses are not subjected to cross-examination.  It’s largely done by filing untested affidavits.  There is no perfecting of an appeal from an actual trial at the trial level.  The issues are not fully briefed, much less argued.

In Trump vs. Hawaii decided a few years back and which upheld the President’s “Travel Ban” Justice Thomas, in a brilliant concurring opinion, called on his fellow justices to put an end to the practice of lower federal courts issuing universal injunctions. 

“These injunctions”, he wrote, “are beginning to take a toll on the federal court system preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch.”

He went on to review the history of a court’s power to issue extraordinary writs that came down to us from the old equity courts of England.  The matters were debated in the Federalists and Anti-Federalists’ papers ending with the conclusion of Hamilton that the “constraints” of their duty to only decide the cases that came before them obviated the danger the courts would grab too much power. 

Justice Thomas pointed out that universal injunctions not only do not comply with the principles set out by the framers but only emerged for the first time in the 1960s, (no surprise there) and “dramatically increasing in popularity only recently.” 

In those years, he said, “some jurists began to conceive of the judicial role in terms of resolving general questions of legality, instead of addressing those questions only insofar as they are necessary to resolve individual cases and controversies.”  Under the Constitution the courts are only allowed to decide “cases and controversies” before them, not general questions of policy.  Universal injunctions, the Justice opined, “appear to conflict with the original understanding of the judicial role.” 

After considering the various arguments made in their support, he concluded there is no constitutional authority for the use of universal injunctions.  “. . .these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power.  That at best “boil down to a policy judgement” about how powers ought to be allocated among our three branches of government.” But the people already made that choice when they ratified the constitution.”  

He concluded “In sum, universal injunctions are legally and historically dubious.  If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”

Recently, (in January) Justice Gorsuch (and Thomas) opined, “universal injunctions tend to force Judges into making rushed, high-stakes, low-information decisions.” Multiple justices said a legal system that produces frequent nationwide injunctions prevent any new federal policy from going into effect. “If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep . . . a single loss and the policy goes on ice.”

Maybe lower federal courts should give serious consideration to staying in their lane.  Someone may argue what Congress gives, it can take away. Congress, not the Constitution creates “inferior” federal courts. It would not be beyond the realm of imagination for Congress to focus on certain judgeships (in blue states and districts, say D.C., San Francisco, Washington state) with an eye to eliminate a district court or two.  Life terms apply to the Judge, not necessarily to the position.  If these district courts have such light dockets they can drop everything to put the President in his place, maybe those courts are superfluous anyway.  (oh my, don’t whisper such things around DOGE!)

Back to Congress and their desire to create “independent agencies.” There is simply no authority under the Constitution for them to make such agencies and the personnel employed there unaccountable to an executive authority.   

Consider for a moment.  Could Congress legislate into existence an entire new branch of government?  A branch “independent” of the others?  Can Congress in a pique of institutional jealousy, create “independent” agencies not subject to supervision from an Executive Authority? And then, can Federal Courts take over the Executive function of the Presidency?

These are the intriguing questions presented by our President’s plethora of Executive Orders. 

No, it is not a Constitutional Crisis.  More like an attempt to re-establish the boundaries between the Constitutionally mandated branches of government.   

To many legal scholars, the administrative State is out of control, answerable to nobody, accountable to no one.  And the inferior federal courts are way out of their lane.  Few Judges on the lowest rung of the judiciary have anything in their backgrounds to give us confidence in their competence to manage a 7-11 store much less execute executive functions in giant federal agencies.  They are appointed not elected and it is the height of arrogance to believe they, God-like, can decide on what is the proper means of managing agencies with thousands of workers, and millions, hell, billions of dollars in taxpayer funds involved in national, indeed, international endeavors. 

It’s time to put the balance back in the balance of powers between the branches of government. 

For other writings by Phil Cline, visit philcline.com 

Note:  I do not open or use the messaging app on Facebook.