The Odd Clauses (6 page)

Skip ahead now approximately one hundred years. In the mid-1960s, England adopted the metric system, thus placing lots of pressure on the United States to do the same. In 1968 Congress authorized the National Bureau of Standards to undertake a three-year study on what should be done about the metric system in the United States. The bureau completed the study, and in a report entitled
A Metric America: A Decision Whose Time Has Come,
urged the country to begin
a ten-year conversion process to the new measurement system. Congress didn't quite follow the bureau's advice, however. It passed a law called the Metric Conversion Act of 1975, which came far short of initiating any sort of obligatory conversion to metric. Although Congress recognized that the United States “is the only industrially developed nation which has not established a national policy of committing itself . . . to the metric system,” and declared in Section 2 of the act that the “policy of the United States shall be to coordinate and plan the increasing use of the metric system,” the law did not mandate that anyone at all had to start using the metric system or even to start thinking about maybe using the metric system anytime in the near future. Instead, Congress created an agency called the United States Metric Board, “to devise and carry out a broad program of planning, coordination, and public education, consistent with other national policy and interests, with the aim of implementing the policy” of the statute.

All Congress did in this law, then, is to delegate consideration of this whole metric thing to a federal agency made up of seventeen presidentially appointed individuals. If you now reread the weights and measures clause (“Congress shall have Power To . . . fix the Standard of Weights and Measures”) and then pause to emphasize a couple of times the first word of that clause, you might wonder whether this arrangement is constitutional. After all, the Constitution gives the power to fix the standards of weights and measures to
Congress,
not to some goofy seventeen-member board that Congress creates so that it can avoid having to decide what to do about fixing the standards of weights and measures. What gives?

This question of whether Congress, whose members are elected and therefore accountable to the people, may delegate its constitutional powers to an agency run by unelected appointees is one of the central conundrums of American constitutional law. It is an undeniable fact that most of the
laws that govern almost every aspect of our economy come from federal agencies rather than from Congress. Think about environmental law for a second, for example. Sure, Congress has passed some incredibly important legislation to protect the environment—the Clean Water Act and Endangered Species Act come to mind—but who do you think really decides exactly what animals are endangered or how much nickel per gallon of wastewater a plant can discharge into a river? Federal agencies make these decisions, not Congress. And it's the same for all the other agencies that regulate nearly everything we do, from aviation (the Federal Aviation Administration) to labor relations (the National Labor Relations Board) to securities trading (the Securities and Exchange Commission) to food policy (the Department of Agriculture) to a thousand other things. Whether it's because members of Congress don't have the time to deal with lots of specifics, or they feel that an agency full of experts would be more likely to do a good job with them, or they just don't want to take the political heat for unpopular decisions (it's a lot less risky to stand up for endangered species generally than it is to stop a $100 million development project because it might harass a couple of black-footed ferrets), Congress regularly lets the agencies deal with the details of federal law and policy.

A few scholars and other observers think that because the language of Article I gives legislative power to Congress and nobody else, all this delegation of key policymaking power to agencies is simply unconstitutional. Even these critics, however, sort of have to concede that if they're right about Article I, then the entire government as we know it would collapse. Perhaps recognizing this, the Supreme Court has long upheld congressional delegation of power to agencies, so long as Congress provides these agencies with some general “intelligible principle” to follow when the agencies go about their business. Theoretically, this “intelligible principle”
test could be quite strict, but in fact the Court has held that almost anything—even Congress's admonition to the Federal Communications Commission to regulate the airwaves “in the public interest”—counts as an intelligible principle. Indeed, the Supreme Court hasn't struck down an act of Congress as violating this rule since 1935. The newly appointed members of the United States Metric Board may not have been particularly powerful, but at least they were constitutionally safe.

So, what exactly did the United States Metric Board do? By all accounts, one thing the members did a lot of was fight with one another. This was almost inevitable, since the Metric Conversion Act that created the board required the president to appoint people representing all sorts of different interests, some (like scientists or educators) in favor of metric conversion, and others (like labor unions and consumers) that were against the idea. This congressional restriction on the president's appointment power is itself constitutionally questionable, but Presidents Ford and Carter went along with it and appointed a lot of people to the board who didn't think much of switching to the metric system. No surprise, then, that the board did not insist on any kind of radical change.

The board did do
some
stuff. It issued publications, aired radio and television public-service announcements, and held town-hall-like meetings to persuade people how great the metric system could be. It urged gas stations to start dispensing gasoline by the liter instead of the gallon, and many stations complied. Other little changes came about at around the same time. Signs on the side of highways, for instance, started showing the distance to upcoming cities in both miles and kilometers (they still do, in some places near
the Canadian border). Fifths of liquor—named because the bottle held a fifth of a gallon of liquid—were reformulated to hold 750 milliliters instead (the new bottles held only 0.2 ounces less than the old ones). Consciousness about the metric system among the general public was undoubtedly raised.

For the most part, though, the board did little and was subject to lots of public ridicule. On
Saturday Night Live,
for instance, Dan Aykroyd played a government spokesman explaining the new ten-letter “decabet”—an alphabet made out of only ten letters, including A, B, C, and D (“our most popular letters”); an E-F combo written sort of like a hangman's noose; a smushed-together “GHI” letter; a similarly mashed together “LMNO” letter (“a boon to those who always thought that ‘LMNO' was one letter anyway”); and one letter representing all of the so-called trash letters from P through Z. “Ten letters, ten fingers,” Aykroyd's bureaucrat explains, beaming into the camera. “Simple, isn't it?” He finishes the skit by working through some examples of how words will be pronounced under the new system (“mucus,” for instance, becomes “lmnoucus”) and then singing the new version of the now somewhat shorter ABC song.

With a public reception like this, it was no surprise when Ronald Reagan disbanded the board in 1982. The details of the board's demise are interesting. According to a column written by former National Public Radio president Frank Mankiewicz shortly after the death of Ronald Reagan's close assistant Lyn Nofziger in 2006, Mankiewicz had sent Nofziger a column back in 1981 “attacking and satirizing the attempt by some organized do-gooders to inflict the metric system on Americans.” This was one position—perhaps the only position—that the conservative Nofziger and the liberal Mankiewicz could agree on, and Mankiewicz reports that Nofziger used the column and other materials the two put together to “prevail on the president to dissolve the commission and make sure that, at least in the Reagan
presidency, there would be no further effort to sell metric.” The two were delighted, but, as Mankiewicz recalls, it was a “victory . . . which we recognized would have to be shared only between the two of us, lest public opinion once again began to head toward metrification.”

In September 1982, the poor Metric Board issued its final report. Among its conclusions? The policy of having two measuring systems is “confusing to all segments of American society.” The perception that metric conversion would be difficult has “no basis.” And there are “no substantial legal barriers” or “technical problems” with metric conversion. Nonetheless, thirty years after the board issued those conclusions and then disappeared forever, the United States remains the only country in the world (with the possible exception of Myanmar) that has not converted to metric.

This is not to say, of course, that we Americans never use the metric system. Our fifths still contain 750 milliliters of booze, and our soda comes in two-liter bottles. Illegal drugs are regularly sold by the gram and kilogram. We run five-kilometer races and measure the dilated cervixes of women in labor in centimeters (not generally at the same time). Still, though, most of our daily measurements remain in the traditional system. Our lumber is sold as two by fours (actually one and a half inches by three and a half inches), and our guns (other than the 9mm) are calibrated in inches. Sammy Hagar has a difficult time driving fifty-five miles an hour. We measure increasing global temperatures caused by Bush administration environmental policies in Fahrenheit and Roger Clemens's steroid-tainted urine in gallons. Al Gore and I measure our fluctuating weight in pounds and ounces. Sometimes, we even report the measure of force exercised by our Mars landers in pounds-seconds.

So let's return now to the question we started with. Whom should we hold accountable for the Mars climate orbiter fiasco? My hunch is that most Americans blamed NASA, but what I've tried to suggest here is that much of the blame—maybe most of it—really should fall on Congress—or, more precisely, all the Congresses that failed to adopt the metric system as our official standard of measurement over the past couple of hundred years. The 1975 Congress that passed the wimpy Metric Conversion Act must get the brunt of the criticism for utterly failing to exercise its constitutional power under the weights and measures clause and creating a wishy-washy agency basically designed to fail to do its dirty work instead. Note that before we can assign Congress any blame for failing to implement some policy, we have to be sure that implementing that policy was in Congress's power in the first place. On the issue of the metric system, that requirement is easily met.

Notice too how the existence of administrative agencies that exercise what rightly might be called legislative power under the Court's lenient “intelligible principle” test complicates the issue of political accountability. Some of the blame for the Mars climate orbiter disaster has to be laid at the feet of the members of the Metric Board itself, for the board clearly had the power to do more to help the country transition to metric. And since the members of the board were appointed by Presidents Ford, Carter, and Reagan and could also be removed and replaced by these presidents, we should remember to include these three leaders on our list of people who deserve some blame for what happened out by the angry red planet.

The Mars probe problem illustrates an issue of immense concern to any country that calls itself a democracy. Critical to the legitimate functioning of any democratic state is the ability of citizens to hold elected officials accountable for their actions. We hold these leaders accountable
in all sorts of ways—when we discuss issues with friends, when we evaluate the accomplishments of past leaders, when we speak up on talk radio shows or at town hall meetings, when we write letters and editorials, and, most importantly, when we go to the polls and vote.

When we do these things, we should always remember that Congress is the primary lawmaking body in the United States. It might not always seem that way, since Congress regularly lets executive branch agencies make critical policy decisions. We may be inclined to blame the EPA, for example, when our air becomes dirty, or the FCC, when censors bleep out some celebrity saying “shitbag” on TV, or NASA when our spacecrafts crash into distant planets. And we're right to assign some blame to these bodies, as well as to the president who supervises them and appoints their officials. Ultimately, though, it is Congress that holds the power to make most of our key policy decisions under Article I, Section 8, of the Constitution. As long as what we wish had happened was within Congress's power to make happen, we shouldn't let our legislature off the hook just because some other actor failed to double-check its figures.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article II, Section 2

When the Supreme Court declared that George W. Bush had “defeated” Al Gore in the election of 2000, the new president—lacking anything resembling a mandate from the American people—vowed to work together with Democrats to pursue common goals and heal a divided nation. Shockingly, however, when it came to nominating judges to fill vacancies on the federal judiciary, President Bush did not always choose moderate candidates who would appeal to both sides of the political aisle. One of the president's nominees, for instance, was accused of being “racially insensitive” because, among other things, he had worked to reduce the sentence of a man who burned a cross on the lawn of an interracial couple. Another nominee, when asked about the opinions she had written on the Texas Supreme Court that she felt proudest about, pointed to such compassionate
rulings as those finding against whistleblowers, plaintiffs harmed by faulty breast implants, and children with birth defects.