Delegation or Surrender?
When does a delegated legislative authority simply become newly established executive power?
Non-delegation doctrine is once more a topic of interest. The Supreme Court, though it has punted on the question several times in recent memory, may choose to weigh in on the question in FCC v. Consumers’ Research. Non-delegation doctrine is something that often weighs heavy on my mind, especially as so many nationalists and populists embrace an unrestrained interpretation of unitary executive theory that seeks to accumulate delegated legislative powers into the single person of the President rather than the administrative agencies created by acts of Congress to administer their delegated authority.
The main argument for the practice of delegating legislative authority to the executive branch can be summed up by the decision in Mistretta v. United States (1989): “Congress simply cannot do its job absent an ability to delegate power under broad general directives” and it is “deemed... ‘constitutionally sufficient’ if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” This view is based on the precedent from J.W. Hampton Jr. v. United States (1928) that such delegation is constitutionally admissible so long as the delegation follows “an intelligible principle to which the person or body authorized…is directed to conform.”
In other words, the argument for delegation is that Congress must rely on the “decision, activity, secrecy, and dispatch” (Federalist no. 70) of the Presidency to fulfill its legislative duties. And, that the limiting principle of delegation is that it can only be done to the extent intended in the legislation that delegates powers and according to a process, an intelligible principle, that assures such powers remain delegated legislative powers and not newly created executive powers. This process, this intelligible principle, ensures that there remains some deliberative element in the exercise of legislative powers so that they remain legislative powers.
For while decision, activity, secrecy and dispatch are the desired qualities of the executive branch, the desired qualities of the legislative branch are, to again quote Federalist no. 70, “deliberation and wisdom...best calculated to conciliate the confidence of the people and to secure their privileges and interests” and “deliberation and circumspection..[serving] to check the excesses in the majority.”
Thus, by the same sagely argumentation from which we deduce that the executive power of necessity must be exercised with decision, activity, secrecy, and dispatch, we also deduce that legislative power of necessity must be exercised with deliberation, wisdom, and circumspection. Indeed, by this benchmark, we can deduce that the exercise of legislative powers under the Constitution should be conducted in a way antithetical to the exercise of executive powers, upon a countervailing, counterbalancing principle without which the system loses a key auxiliary precaution in its operation. It is hard, then, not to discover a thwarting of both the Constitution’s letter and spirit to engender a scenario where legislative powers are exercised as if they are executive powers.
The current precedent of the courts and the most often held view of constitutional scholars is that as long as the intelligible principle exists in the legislation that delegates legislative power to the executive branch, then the power remains a legislative power because the principle ensures a deliberative element to the power’s exercise.
But I have a growing concern that the reality of how Presidents tend to exercise delegated authority fails to match the theory of the intelligible principle. Most disturbingly, the doctrine of the intelligible principle fails to truly confront when a delegated legislative power becomes, in its exercise, an executive power. And I think this unanswered question logically extends to a preponderance upon whether a legislative power can be delegated at all without becoming an executive power.
As discussed earlier, Federalist no. 70 established a long-held expectation that the Article II powers of the executive branch be exercised with decision, activity, secrecy, and dispatch. The President is expected to be decisive in his/her role, to wield the executive power with clearmindedness and purpose. This expectation was one of the reasons why a single executive officer was established to head the branch, rather than a council or dual executive. As Publius tells us, to return to Federalist no. 70, the framers “considered energy as the most necessary qualification of the [executive], and have regarded this as most applicable to power in a single hand.”
The Presidency was designed to be the purview of a single elected official leading an active institution, an independent institution, an institution not belabored by slow-moving legislative procedure, by long-winded deliberation, or by bureaucratic maneuvering. In short, the executive was designed to perform his/her duties in a specific and singular way and was granted powers in Article 2 that fit this design.
And so, when the legislative branch delegates its powers to the executive branch, the executive branch naturally begins to exercise such powers according to its design, with decision, activity, secrecy, and dispatch, and does not naturally acquiesce to legislative procedure, processes of deliberation, or slow-moving bureaucracy. Indeed, as we have established, it is not meant to do so. We do not want it to.
Thus, given the established and designed nature of the executive branch, it is impossible to delegate legislative powers to the executive branch without inevitably changing the nature of those powers. No amount of oversight, no established procedure, no intent to offer advice and consent can overcome the unavoidable reality that the President, beyond the specific checks and balances established in the Constitution, will not naturally allow the executive’s intended prerogative to exercise power with decision, activity, secrecy and dispatch to be stymied by the legislative branches’ designed processes of deliberation and naturally slow arrival upon consensus.
A power in the hands of the executive will be exercised as an executive power, regardless of the “intelligible principle” applied. A power given to the executive branch by the legislative branch is not delegated, it is surrendered. It becomes a de facto executive power. Thus, this process of “delegation” frustrates the constitutional design, neuters the separation of powers, and creates an accumulation of powers into a single entity...a situation at least one of the framers characterized as “the very definition of tyranny.” (Federalist no. 47)
It might appear prudent for the Supreme Court to, at some point, finally consider and ponder that, while a strict doctrine of non-delegation might be unworkable, it would nevertheless be more in keeping with the intended balance of power in the constitutional order to err on the side of non-delegation than to allow unchecked delegation.
And, given the steady increase of cases where the courts are asked to weigh in on the disagreements over procedure, and the proper interpretation of the “intelligible principle” upon which certain delegations are established, the intent of keeping the courts out of the question of refereeing the legislative and executive branches relationship through a doctrine of deference has proven a failure. If the courts are to be called to weigh in on every controversy of delegation, then perhaps it is time for the court to weigh in more fully on the matter of delegation itself.
"Thus, given the established and designed nature of the executive branch, it is impossible to delegate legislative powers to the executive branch without inevitably changing the nature of those powers. No amount of oversight, no established procedure, no intent to offer advice and consent can overcome the unavoidable reality that the President, beyond the specific checks and balances established in the Constitution, will not naturally allow the executive’s intended prerogative to exercise power with decision, activity, secrecy and dispatch to be stymied by the legislative branches’ designed processes of deliberation and naturally slow arrival upon consensus."
I think you are making an argument from principles when really we need an investigation of facts. "it is impossible to delegate legislative powers to the executive branch without inevitably changing the nature of those powers." Yes, this conclusion stands strongly enough comparing Federalist Papers, but, where exactly has the 'administrative state' (which is how I like to think of the place, largely in the executive branch, fulfilling executive functions, but with rulemaking/legislative and review/judicial authorities) truly faltered? I understand that there is a lot of dispute about the function of the administrative state, but these disputes have such powerful ideological overtones that it is hard to dissect them. What aspects of FDA rulemaking and review are lacking? What is the consequence of this lack? Who primarily bears the cost of deficiencies? Does that lack lie in [bad decision about a specific policy] [a contingent nature of rulemaking that can be modified] [abstract political consequences like electoral disengagement from local and bread and butter issues in favor of bombastic party-lineism; also how much can such an argument be rooted in strong evidence rather than ideological projections painted with the veneer of evidence]?
I am sorry I do not have a hundred citations lined up but I find that when the issue is probed with that degree of granularity, what we find is not 'executive does x and therefore it is constitutionally and electorally intolerable for it to do y' but 'a mix of pros that are in fact vital to modern governance and a mix of cons that all three branches of our government have the appropriate authority and opportunity to change when the political spotlights are turned on.'
I think there is more reality to grapple with which is this: the modern economy runs on a degree of consumer confidence that is only achieved with at least the promise of regulatory oversight; science and medicine (and especially the work it takes to get from present time to future science and medicine) perpetually raise issues and introduce things into reality that laypeople lack the time, tools, incentive, knowledge, to contextualize and make rational decisions about. That exerting ordinary police powers (the law of torts, protecting the public from certain flagrant business practices, &c.) over production of a product like Humira requires a depth of expertise that congress simply cannot deliver and requires the employment and structural stability of the executive. For the executive to act rationally and consistently in this space then requires some capacity for rulemaking. I think there is a strong argument that the administrative state made many of the advances of the past seventy years possible.
Regardless of your stance on all that it is even more true that the administrative state is something that huge swaths of the country and varying political interests have come to rely upon for maintaining rather basic and cherished aspects of our social order. So even if it is suspect in the abstract philosophical sense of maintaining branches of government, it is perhaps dangerous to throw the baby out with the bathwater. Or, the actual dismantling of the administrative state will require just as much complexity and rearrangement over and above what the Federalists were thinking and worrying about (managing an agrarian economy), that it might very well prove silly and not an improvement at all to go through all those steps for no other end but to satisfy a present ideological agenda.