Never one to hold back from making radical, if not at times controversial statements on topics, Supreme Court Justice Clarence Thomas has recently been assumed by some to be waging war on Administrative Law. In particular, Thomas has a strong dislike for rulemaking. A strong dislike that he is not afraid to express, utilizing every opportunity he can to expose and ridicule it.
Just this month, the judicial representative voiced his opinions on the legal status of passenger train-operator, Amtrak. In his argument, which was in reference to the recent Supreme Court case where the AAR (Association of American Railroads) accused Amtrak of taking advantage of the government to get a certain leeway in their operations that is not afforded to freight rail operators, he claimed that only Congress can create the rules to govern private conduct, insisting that it would be unconstitutional for anyone in the Executive branch to get involved. It has been noted that this may have been an indirect attack on Vice President Joe Biden, who got somewhat involved in the case.
In a twist of irony, however, he also appears to harbor objection to administrative agencies making extensive usage of interpretive rules and policies. Fellow justices, Alioto and Scalia, shared his sentiment, with the former concurring that many agencies frequently exploit loopholes in the boundary between interpretive and legislative rules. Thomas used history to back up his point, saying that it goes against the differentiation of powers that was asked for in the Constitution, continuing to solidify his distaste for rule making.
Upon listening to his opinions, most of which expressing an objection to interpretive rule that borders on obsessive, one has to wonder if Thomas even fully comprehends what he is talking about. For starters, he does not acknowledge that there are several policies that agencies have to submit under that Congress does not when making rules. Before any rules are made, an agency needs to start by furnishing a record of facts, which they use to back up their reasoning for why they wish to create the respective rule. They must also make sure their rules are consistent with already pre-existing statutes before they send it to a court for Judicial review. Congress does not need to do any of this.
Conveniently, Thomas’s dissent in regards to rule making comes at a time where many conservative members of Congress have given President Barack Obama backlash (yet again) for several significant Executive orders he has executed recently. Many conservatives do have a penchant for insisting the government gets too involved in the business of smaller entities and personal affairs, so that could be where Thomas is coming from in regards to his stance on Executive rule making. The reasoning for his objection to agency rule making is anyone’s guess, however.
Thomas has once again proven his fondness for strong, controversial statements, this time expressing his dislike for rule making. Only this time, the general consensus appears to be that he is not even making any sense. Instead of agreeing or disagreeing, many political experts have just been rendered speechless.
Opinion by Philip Cunningham
Photo by: Wally Gobetz – Flickr License