Since [the New Deal], federal courts have generally deferred to administrative agencies' interpretations of their authority under their governing statutes, many of which are as open-ended as the Clean Air Act, if not more so.New York Times legal columnist Linda Greenhouse in 2011, complaining that the Supreme Court refused to review a challenge to a different law:
The Clean Air Act, which dates to 1970, directs the Environmental Protection Agency to set national air quality standards at levels that "in the judgment of the administrator" and "allowing an adequate margin of safety" are "requisite to protect the public health." If that mandate amounts to an unconstitutional delegation, experts in administrative law have warned, then so do the broad marching orders Congress has given to agencies like the Federal Communications Commission, which is charged with regulating broadcasting in light of "public interest, convenience and necessity."
Congress, in a 2005 enactment entitled the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, bestowed on the secretary of homeland security breathtakingly broad authority to set aside "all legal requirements" that he might regard as standing in the way of building the fence.More evidence that, regarding law, liberals only care about results, not reasoning.
This authority extended not only to major federal environmental laws but also to any other laws the secretary, in his "sole discretion," might think of. In early 2008, Secretary Michael Chertoff issued orders setting aside relevant portions of 37 federal statutes (even including the Religious Freedom Restoration Act), as well as all related state and local laws and regulations within a 500-mile swath of the border that cut across four states.
True, in one sense Mr. Chertoff was simply exercising the authority that Congress had given him, which in the ordinary case is what the separation of powers contemplates from the executive branch. But such a broad and unfettered delegation of essentially legislative authority raises substantial constitutional questions. . .
One appeal, brought by El Paso County, Tex., did reach the Supreme Court in the spring of 2009. The justices considered the case (County of El Paso v. Chertoff) at eight consecutive closed-door conferences before rejecting it, without dissent or explanation. By refusing to hear the case, the justices thus left on the books, unreviewed, a deeply disquieting distortion of how the American system of government is supposed to work.
Good fences may make good neighbors, but bad fences make bad law.
(via The Weekly Standard)