Expert: In W.Va. vs. EPA, SCOTUS curbs agencies—amid wider political landscape of “deep state” lies

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Public policy expert Don Kettl discusses the parallel worlds of a Supreme Court curbing federal regulatory power and a popular world awash in (unfounded) "deep state" conspiracy theories—with both realms hostile to agency authority.

On June 30 the Supreme Court ruled in West Virginia vs. Environmental Protection Agency that the agency lacks legal authority to do as it had been for years—developing power plant emission caps that limit carbon dioxide, aimed at slowing the harms of global climate change. The ruling is seen as a heavy blow to environmentalists, and to the power of EPA itself. In the weeks since, many in legal and political fields have said the decision may open the way for foes of government regulation to weaken more agencies across the federal government. The majority in the 6-3 decision relied on the concept of “major questions doctrine,” arguing that an agency, in many circumstances, can only extend its regulatory power if it can point to “clear congressional authorization.” In this case, the majority found EPA had not met this standard. This week, Nathan Abse interviews Donald Kettl about the expert’s concerns about the potential debilitating effects of the W.Va. vs. EPA case on the rest of government—and his worries about an increasingly anti-government backdrop in society and Congress, including the spread of “deep state” theory. The momentum against regulation in the Court, Kettl says, in effect parallels the rise of those who subscribe to deep state theories—all helping to further the long-simmering hopes of an increasing number of leaders, mostly in the Republican Party, to limit the power of the federal government. Kettl, who recently wrote a piece about the case and the embrace by many in the wider society of deep state theory, is an emeritus professor of public policy at the LBJ School of Public Affairs at the University of Texas at Austin.

Q&A with Don Kettl

In a recent analysis, you discuss W.Va. vs. EPA, and find parallels in conspiracy theories that our civil service is an untrustworthy “deep state.” When did this derogatory term and theory begin?

Kettl: The idea that the professionals in our civil service are not actually serving the country is not new, but the term “deep state” is more contemporary. The term deep state and the way it’s used now to criticize government in the U.S. originated in Turkey. It goes back decades there, where certain groups used it to signal their belief there was an unhealthy collusion between that country’s bureaucracy and its military, allegedly conspiring to apply excessive power to punish legitimate leaders. As intended, those who started using the term “deep state” cast a kind of dark shadow over everyone in government. Much more recently, the same term got popularized in the U.S. by some conservatives—taking off as I recall around 2014 or 2015. They adopted it, and held, or projected, similar concerns about an alleged vast and illegitimate growth in the power of the agencies of our government—especially during the Obama administration.

Can you give us more detail, on how the theory and term came to be popularized in the U.S.?

Kettl: Sure. On this, first I’d send your readers to a useful piece by [former Republican congressional staffer] Mike Lofgren, which journalist Bill Moyers posted on his website. This write-up ably analyzes the allegations about a “deep state” in the U.S.—and summarizes and critiques the idea, in a nutshell, that government bureaucracies have been claiming far too much power, and more power than Congress had delegated to them. I think it’s a good summary. I would just emphasize that those who propagated the term here believe that so-called deep state, federal government power became, over time, a way of subverting the will of the people—so that individual bureaucrats’ opinions are asserted over those of elected officials. Many people who subscribe to deep state conspiracies perceive all this as very real, here in the U.S.—and that it’s a threat to democracy and good government.

So, the “deep state” idea arose in anti-government groups in Turkey, but conservatives here applied the catchy term against what they saw as the excesses of the Obama administration?

Kettl: Correct. But you have to remember similar views, by groups of all kinds, against the evils of bureaucracy go back a whole lot further in our country and abroad. Back to ancient Rome, or even ancient Greece. Even back then there were those concerned—or using concerns—about both excess government power and worry about the military or parts of government bureaucracy perceived to be far too powerful. The idea of “the deep state” is not new.

In your recent piece, you say Congress has long written bills vague on granular detail—but in today’s polarized environment this method doesn’t work: regulatory opponents see an evil “deep state” in any agency move not written explicitly in the law, right?  

Kettl: Right—or they use that objection. In any case, having fuzzy parts of bills can help parties to specify just enough to get them passed, to find compromise, and leave the rest to agency experts. The core issue here is that these days Congress is finding it harder and harder to pass laws of substance. There’s just an absence of common ground needed to pass needed laws. And the more polarized our politics becomes, the more that the actions of both parties on Capitol Hill have become more partisan. And so as a result of that, Congress is often not so much legislating actual programs—less so than in the past—as it is putting rhetorical stakes into the ground, marking out political issues.

That kind of polarizing posturing leads to trouble, for feds actually doing government services?

Kettle: Well, sure. With respect to laws that are passed or in place, administrators at agencies are left with the job of trying to find ways of implementing governmental policy based on those laws, including where it’s not clear. They have to fill in gaps on tasks that Congress has told them to do, but very often without very much detail in the law on just how to do that. Again, this problem is magnified by the fact that Congress, in passing laws, often has a difficult time laying out specific details—or at least details specific enough for administrators to administer. Then you find [the laws] are just not clear enough or unambiguous enough that administrators can function without adding their own judgment. As I said, this has been true for a long time but has gotten even more challenging. Plus—and this is very important—no matter how expert Congress might be on the subjects handled in a law, lawmakers are never going to be as expert as the professionals who spend their careers working out the particular policy issues at the agencies that carry out that law on the ground. All of this leads to a situation where Congress inevitably continues to pass laws or sustain laws investing our civil service, our bureaucracy, with a lot of power. And yet, in an ever-more disputatious environment, the question these days is an open one: under what circumstances can the bureaucracy confidently exercise that power?

On this front, in your piece you note that “fuzzy” legislation has left room for agencies to find ways to implement a new policy or solve new problems, without Congress legislating in minute detail. But you say that after W.Va. vs. EPA, this might not work. Can you provide examples?

Kettl: Yes. That law isn’t granular is true of just about anything and everything. Each agency basically has to develop policies. At EPA, there’s environmental policy, the details of which are worked on at the agency—because the basic issue is just how tough the rules and regulations need to be. And that has to do with balancing the cost of compliance on the one side with the reduction of pollution on the other. In detail, and that’s not something Congress does. At HHS and with respect to Medicare, there’s figuring out just what it is that the program ought to pay for—how much to pay for each cost is too much or too little? At Transportation, there’s highway safety issues and regulations—including the standards by which highways have to be built, down to the way guardrails are constructed, and signs and traffic lights are made. Balancing regulations and costs and outcomes. At NASA, there’s the basic science of trying to find ways of putting the Webb telescope into orbit, its implementation, and costs—adding up to a stunningly complex and impressive accomplishment. So, at each of these, it’s often one thing for Congress to pass the law along with some details, and to provide the money, and to deem that such-and-such ought to happen. It's quite another for the agency to figure out all the details on how to get it done, and to implement—right? Many, many issues end up just percolating along, for the most part, at the agencies. This situation exists throughout the government. If you take too much of this away from the agencies, you have big problems.

In W.Va. vs. EPA, the Court acts against “fuzzy” law, basing its decision on “major questions doctrine” demanding Congress be “explicit” in guiding agencies on politically controversial issues. You object this is not an agreed-upon legal tenet. Does the ruling also invite wreckers to sue and derail agencies honestly trying to implement policy?

Kettl: That’s right. There are two big issues with “major questions doctrine,” which the Court embraced in its decision. First, actually despite its name it has never been established as doctrine by the Court. Rather, it’s an argument that been raised from time to time. Second, even in outline the Court never has defined just how “major” a major question needs to be to fall under such a “doctrine.” What issues, then, can and should fall under it, and which should not? So, second—and with respect to your question—the W.Va. vs. EPA decision does invite a whole new slew of litigation, whether intended just to slow the government’s work or explore what the boundaries of what major question ought to be. So, what all this really means is that many possible issues that seem settled will end up bounced right back into the courts. There's really no way to resolve—outside of court—the kind of questions the Court has waded into here, without it deciding one case at a time on how to do that. I would add that one of the worst ways to try to make broad government policy is like the way it will happen from now on, trying to do it in small chunks, bit by bit. It will make things that much more difficult for everybody involved to find a way through.

The decision invites a deluge of litigation, because once you allow government opponents to derail regulation via the black hole of “What's a ‘major question?” you kind of force or encourage courts to entertain those challenges, right?

Kettl: Yes. Not only does the W.Va. decision invite lower courts to entertain such questions, but it invites a sea of potential litigants to shop among courts, trying to choose which might be the most favorable for them. This opens up a whole new realm here. The idea of “jurisdiction shopping” is an old principle—where litigants engage in trying to find the most advantageous court or court of appeals, where they can get the most favorable opinion. All these games will take up a lot of time and resources. And moreover it's unlikely to clarify which policies are legal, for everyone. In fact, all the different courts with different makeups appointed by different presidents at different levels are likely to come to different opinions about what is legal, what is not, and how things should work!

Economically, isn’t all this potentially disastrous?  And even once these cases are adjudicated, as you said you get a patchwork of differing decisions—creating an economically unfeasible mess?

Kettl: I think that's right. If nothing else, W.Va. vs. EPA could ensure a long-term pattern of greater litigation. Economically, that’s going to be difficult. Look, even as difficult as it already is for Congress to chart a course on how to deal with many of the difficult issues facing our country, it’s clear to me our courts are even less prepared to play that role. We may have smart judges and justices, and they may have very smart clerks. But most clerks are trained in law, not specific policy issues. The fact is, when it’s crunch time to draw lines around so many of our pressing issues, we need people specifically trained in how to do that—as we often do have on staffs in Congress, but not in the courts. So, even if the Supreme Court tries to frame the recent decision by criticizing Congress and demanding it write more explicit laws, practically and politically speaking we know law often needs some fuzzy aspects to pass—especially now. So, Congress isn’t going to do the “fixing.” In effect, then, what this Supreme Court has really done is to take on far many more decisions upon itself, and the rest of the judiciary—not put it on Congress. And courts do not have the resources or the expertise—and so I believe the Court handled this in ways that are going to be very difficult for courts to get right.

With respect to precedent, will W.Va. vs. EPA knock down the landmark case Chevron vs. Natural Resources Defense Council—a case that had recognized agency technical expertise and reasonable interpretations by civil servants and agencies?

Kettl: Frankly, after W.Va. vs. EPA, it’s just not clear how the decision affects Chevron vs. NRDC. Because the Court did not reject that earlier case, at least not explicitly. So what you’re asking is a question that must wait for the future. Look, the most basic question after W.Va. is this: How much discretion do agency administrators have now? Going forward, to what degree can and should Congress create barriers and roadblocks—as well as clear roads—for administrators on which to move? The case has opened up a big question on what Congress must do in writing its laws to make them effective. The question applies whether during Democratic or Republican presidencies and congresses. The nature of the laws that Congress passes is that, by necessity, they require interpretation. So just how much interpretation is the Court prepared to let agencies make? For now we don’t know. Congress and agencies—and federal civil servants—are going to have to find ways of navigating these muddy waters, even as more cases are brought to court.  

If other agencies are deluged with litigation against regulations—couldn’t this lead to administrative chaos?

Kettl: It could easily lead to administrative chaos. Sure. But an alternative could be some agency administrators could decide that the Court really wasn't that serious about the case, as a more general issue, and push forward as they had been on developing regulations. Another alternative is some administrators might do less, and lie in wait for further litigation to go through the courts which might clarify matters. On the judicial side, in the wake of this decision the Supreme Court might start to perceive a parade of problematic issues it has created, including the one we’re speculating on here, and decide in effect to reverse on demanding so much of Congress across agencies. It might redraw some of the boundaries again, giving more room to agencies. One thing is certain, though, after this decision, a number of new battles are about to begin flowing through lower courts. Longer term, we will have to wait to see. Unfortunately, in a worst case, what this could do is to make creating rational policy even more difficult than it is now—and that's an outcome that we as a country don't need.

NEXT STORY: TSP: Keep it simple?

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