Article 1, Section 1: Congress

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article I, Section 1, is sometimes described as the Legislative Vestment Clause, but it actually consists of  two clauses. The first clause declares that the Constitution vests all federal legislative power in Congress. The second clause declares that the Congress shall consist of two houses.

It is significant that the first Article of the Constitution defines the powers and structure of the legislature. The Founders clearly believed in legislative supremacy. Though experience had already taught them the necessity for an executive endowed with “energy, dispatch, and responsibility”, the executive was ultimately responsible to the legislature. He was given no power to make laws, but only to see that the laws were faithfully executed, and to veto bad laws (subject to override by supermajorities in Congress.) The courts were given an unprecedented degree of independence, but only so that they might act as impartial umpires, seeing that the laws were applied consistently and correctly.

We are indebted to Justice Gorsuch for the critical insight that the judiciary is most within its element when it rules on actions that have already taken place; that the executive is most within its element when it acts within the present; but the legislature is most within its element when it looks to the future. Laws are enacted to govern future action. The prohibition on ex post facto law, whose roots go back at least to the Romans (nulla poena sine lege), reflects this. Thus the three principal branches of the federal government are supreme within a different temporal scope: The judiciary deals with the past, the executive with the present (we note in passing that this gives the executive a natural advantage in the balance of political power, a topic we will revisit in a future post), and the legislature with the future.

Greetings, my friend. We are all interested in the future, for that is where you and I are going to spend the rest of our lives. And remember my friend, future events such as these will affect you in the future.

We have already discussed the significance of a bicameral legislature, and will only briefly repeat that discussion here. The Framers feared that a unitary Congress would be vulnerable to groupthink and domination by a single clique, which they expressed as a fear of simple government. Yet they also believed in the supremacy of the legislature. Their solution was to divide Congress against itself, with two chambers elected by different constituencies for different terms of office, and with each chamber having its own unique prerogatives. This was the outcome of the Great Compromise of 1787, arguably the single most significant political breakthrough in the history of classical liberalism in America.

We focus the remainder of our post on the Legislative Vestment Clause (sensu stricto: “All legislative Powers herein granted shall be vested in a Congress of the United States”) and on the Non-Delegation Doctrine.

The essence of the Non-Delegation Doctrine is that one branch of government cannot delegate its constitutional functions to another entity. The judiciary cannot delegate power to the legislature to try a case; the legislature cannot delegate power to the executive to make laws; and so on. The Framers were likely familiar with the statement of John Locke from almost a century earlier (Second Treatise of Civil Government, 1690):

The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. … And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.

Many readers doubtless observe that this doctrine has mostly been honored in the breach, in that the massive regulatory apparatus of the U.S. government operates largely under the executive branch.  We do not disagree, and find abhorrent the extent to which this doctrine has been violated since the time of the New Deal. Nonetheless, there are some nuances to this view.

The first significant case involved a law passed by Congress in 1825 that empowered the courts to determine judicial procedures In Wayman v. Southard (1825) the Court ruled the law constitutional even though the determination of judicial procedures was widely seen as a legislative function. Marshall wrote: “… a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.” So the nondelegation doctrine was chipped away a little, to allow another branch of government to spare Congress the task of dealing with the details. The nondelegation doctrine took repeated body blows during the New Deal. The Court struck down several delegations of regulatory authority to the executive branch, until the infamous “switch in time that saved nine” in 1937, where the Court (in the person of Justice Owen Roberts) finally caved to political pressure from the Roosevelt administration. The controlling precedent today was enunciated in J. W. Hampton, Jr. & Co. v. United States (1928). As summarized at Wikipedia:

‘In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.’ So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.

That the “intelligible principle” test is itself all but unintelligible is ironic as well as deeply regrettable. The current attitude is well captured in the 1989 case Mistretta v. United States, in the opinion by Justice Harry Blackmun:

Applying this “intelligible principle” test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.

In other words, if Congress is not up to the task of writing sufficiently clear and detailed legislation, the bureaucracy may step in. The problem is that there is no limiting principle discernible here. This view also ignores a perfectly constitutional alternative, which is for Congress to delegate the writing of legislation, but reserve the actual enactment to itself.

Short of the courts reversing course, and insisting that Congress start doing its job, what is to be done to reinvigorate the Non-Delegation Doctrine? The Framers assumed that Congress would be jealous of its prerogatives, but this has not turned out to be the case. Congress has, in recent decades, shown itself perfectly willing to delegate unpleasant disagreements for the bureaucracy or the judiciary to resolve, thereby avoiding the political risks of deliberation, negotiation, and compromise — the political risks of democratic deliberation in a free republic.

A couple of structural solutions suggest themselves. One is either term limits for Congress or longer terms for Representatives, so that they are not in a perpetual campaign mode. We resist the notion of term limits, at least unless they are simultaneously applied to the judiciary and the bureaucracy as well. The other solution is to make it easier for Congress to reclaim delegated legislative power: Pass an amendment providing that any regulation formulated under delegated power can be immediately nullified by a vote of two-fifths of either chambers of Congress, at which point the usual legislative process must be followed to reinstate the regulation.

If it’s really only about filling in details, one would think that better than three-fifths of both houses would oppose striking down the regulation. After all, forcing one’s fellow legislators to follow the full process of legislation for mere details is going to cost a lot of political capital and be a rather unattractive maneuver to be making constantly.

That, or strictly prohibit any delegation of legislative power whatsoever.