WALLISON: Roberts Court is likely to restore nondelegation doctrine


Ramesh Ponnuru, in his December 11 Bloomberg article, “Conservative Justices Aren’t About to Abolish the Government,” correctly identifies the political and intellectual difficulties associated with restoring the nondelegation doctrine. What he does not recognize is why the five conservative justices on the Roberts court, and many other conservatives, still consider it imperative.

U.S. Supreme Court justices pose for their group portrait at the Supreme Court in Washington, U.S., November 30, 2018. Seated (L-R): Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito, Jr. Standing behind (L-R): Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. REUTERS/Jim Young – RC1252A58870

The US Constitution creates three independent branches, each exclusive within its constitutional domain. Congress alone can make a law; the president and the executive branch alone can enforce or execute a law; and as Chief Justice Marshall said in Marbury v. Madison, “It is emphatically the province and duty of the Judicial Department to say what the law is.” The Framers divided the powers of the government because they believed that if the power to make the law and the power to enforce the law were to fall into the same hands that would be a threat to the people’s liberties.

This structure worked as designed for about 150 years, but in and after the New Deal Congress began to abandon its role as the principal lawmaker for the nation, relying increasingly on the president for policy direction. Eventually, Congress found that it did not have to make the most important and controversial decisions for society — decisions that endangered the members’ re-election. Instead, it was easier to set goals for administrative agencies, requiring them to ensure things like clean air or water, without taking the necessary step of describing who was to get the benefits and who was to bear the costs.

Thus, at bottom, the uncomfortable fact is that Congress of its own volition has given the agencies of the administrative state the power to make the major policy decisions that Congress itself should be making.

This is a serious problem for a country that believes itself to be a representative democracy. If nothing is done to correct this problem, the dereliction of Congress will continue, and the time will come when the American people will recognize that they no longer have control over their own government. Instead, they will see themselves as living in a kind of benign dictatorship, where the rules are made — not by the Congress they elect— but by faceless and unelected bureaucracies assembled around Washington, DC.

Brexit is an example of what happens when a nation’s people recognize that they are being governed by a group they cannot control through their votes. Although Brexit is obviously not a possibility in the US, the resentment that ensues in this country could be a threat to the legitimacy of the government; some might even see hints of this in the so-called “populist revolt” in 2016.

How can we deal with this problem? It is not a solution to demand that Congress operate differently. The members are following the path of least resistance as long as their objective is easy re-election. Agencies, too, driven by the power imperative or to show they are doing something that justifies increased appropriations, will continue along their regulatory path.

Nor is it possible for the president to rein in rulemaking by the administrative state. Each year from 1993 to 2017, according to Clyde Wayne Crews of the Competitive Enterprise Institute, the agencies of the administrative state issued significantly more than 3000 rules and regulations — a total of more than 101,000 in the last 25 years. President Trump has made it an objective to reduce the number of these rules, and he has had some limited success (the number of rules was just over 3000 in 2017), but how many presidents in the future will have the time or the desire to keep the focus on this issue?

For these reasons, the only effective way to reduce the flow of law-making power to the executive branch is to force Congress to return to the role that the Framers intended — that is, to make the key decisions for society, without delegating these decisions to the agencies of the executive branch.

That is what the nondelegation doctrine is intended to do — limit the ability of Congress to delegate its lawmaking power by invalidating laws that confer power on administrative agencies without the necessary limitations.

Yes, it is conceptually difficult; that’s why in the 231 years since the ratification of the Constitution the Supreme Court has invoked the nondelegation doctrine only twice, both in in 1935.  Yet at this point it must be done. As long as Congress is unwilling or unable to carry out its constitutional role, the Court must either step in to re-establish the constitutional structure or stand by as decisions that should be made by Congress are given over to unelected officials of the administrative state.

If the nondelegation doctrine is restored, Congress will have to consider — before it enacts a law — whether it is delegating excessive legislative power to an administrative agency. If it fails to do so, it may find that the law is eventually struck down as unconstitutional. This certainly doesn’t mean that the whole government will be declared unconstitutional in a single case, although that will be one of the political arguments made against the restoration of the nondelegation doctrine. But it does mean that if the five conservative justices choose to proceed along this difficult course, it will restore the government of the United States as the representative democracy that the Framers designed.

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