Congress should take up gauntlet thrown by court
Will Congress meet the challenge thrown down by the Supreme Court in June? In a sweeping opinion by Chief Justice John Roberts, it declared an end to the era of bureaucratic freelancing. A fair but short summary of the change is that every federal agency proposing to regulate any activity by an individual or business must find a clear basis for it in a statute passed by Congress and signed by the president.
Last month’s 6-to-3 decision in West Virginia v. Environmental Protection Agency did not, as some have argued, resurrect the “non-delegation” doctrine which would have neutered many agencies of most of their powers, or signal a return to a laissez faire era that saw the court strike down law after law that attempted to regulate business. What the new case holds is simply that Congress must get to work. If Congress and the president want an existing agency to regulate a new issue or even a new agency to regulate a specific set of problems, they must say so.
There are major areas where both parties agree legislation is needed and new regulations — and probably new agencies — must be stood up. Congress and the president need only articulate a specific intent to delegate regulatory authority to stop the courts from erasing final regulations.
There are two obvious — indeed, pressing — areas of regulatory expertise to which Congress should delegate important work, and quickly.
The first concerns America’s social media and data collection giants — Big Tech, as they are collectively known. “Oversight of the dominant digital platforms’ broad effects on society is not possible within the existing federal regulatory structure,” a Brookings Institution review of the regulatory vacuum concluded in February of 2021. Both Republicans and Democrats fear the untrammeled powers of Silicon Valley.
Rep. Peter Welch, D-Vt., wants to create a regulatory agency to govern many aspects of the tech sector. His Digital Platform Commission Act would stand up the “Federal Digital Platform Commission,” which would have five commissioners appointed by the president and confirmed by the Senate. Sen. Michael Bennet, D-Colo., is pushing the same concept in the upper chamber.
They have many allies among the GOP.
Two concerns should shape Congress’ direction and the scope of any new agency’s work. First: national security — is “Big Tech” selling powerful tools of repression and total surveillance marked “made in the USA” to our enemies? Second: Who owns an American’s digital footprint and their data? The individual or the company that collects it? No agency currently exists with the requisite understanding, expertise or powers to answer these questions even if Congress put them on the table. A new agency must be created to proceed from an articulated congressional intent.
Washington understands that Big Tech’s hidden powers are increasingly part of our national defense posture. Silicon Valley fears ill-informed regulations pouring out of creaky agencies set up decades ago. Both government and business should rally to a new, bipartisan independent commission with broad powers to correct excesses, advance our cyberwar advantages and protect the nation’s and its citizens’s data.
Similarly, climate change is real but the Environmental Protection Agency is not the place to tackle it. New experts with a broader mandate must be assembled and charged with advancing mitigation and adaptation strategies. A first step: unleashing a new era of safe, climate saving, clean-power generating nuclear plants combined with common-sense controls on any emissions that warm the planet. The United States cannot cripple itself and its economic productivity with gestures to climate absolutists while ignoring China’s unrestrained emissions that will overwhelm all other efforts.
A closely divided Congress (and one very likely to see the GOP take the majority in one or both houses in November) with a Democratic president presents exactly the right conditions for compromise on sane regulatory initiatives. Democrats will soon lose the ability to get anything big done, and Republicans won’t gain it. Before we enter into even deeper legislative gridlock, compromise makes sense. Stand up the new agencies. Send them off to accomplish big, but specific, tasks. The courts will then stand aside, as the Constitution directs they almost always should when Congress and the president have agreed.