Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands.
This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may help improve the economic wellbeing and enhance the economic opportunity of millions of Americans. But, as these case studies reflect, the risks of such agency action are considerable. First, when the executive branch gives money away, Article III standing requirements will weaken the check of judicial review on administrative action. Second, agency creation of schemes for protecting economic entitlements may result in political and even legal entrenchment that could complicate or obstruct future lawmakers’ ability to undo those agency decisions. Third, the initiation of broad-scale government spending programs entails society-wide redistributive trade-offs that neither individual agencies, nor the executive branch as a whole, can properly make. In sum, this form of executive-branch action may advance important interests—interests in health, education, and economic equality and opportunity. But it may also corrode values that are at least equally important—most notably, the power of Congress to control the current and future financial obligations of the United States.
Mila Sohoni, On Dollars and Deference: Agencies, Spending, and Economic Rights, 66 Duke L.J. 1677 (2017)
Available at: http://scholarship.law.duke.edu/dlj/vol66/iss8/1