When canvasing the old principles from bygone, healthier times, we might stumble across a worthy, but forgotten, legal theory like Germanic barbarians tripping over Roman ruins. One such instance of “ancient” wisdom that should be bruising our heal today is the old doctrine of nondelegation (theory that one branch of government cannot improperly delegate its constitutional powers to another branch), which in the United States was once clearly understood as a means of preserving constitutional separation of powers and, most importantly, Article I’s explicit stipulation that “All legislative powers herein granted shall be vested in a Congress of the United States.” Nicholas Szabo’s “Origins of the Non-Delegation Doctrine” shows how the debates within the First Congress, for example, exhibited the Founding generation’s great earnestness in affirming the nondelegation doctrine via protecting Congress’s Article I powers.
This, like many former principles of good government, was dysfunctionally reinterpreted by the Supreme Court to make room for the zeitgeist public policies of King Franklin during the Great Depression. Such refashioning began when the Court abruptly refrained from its prior defense of nondelegation. After initially striking down instances of Congress’s delegation of legislative authority to the president within the National Industrial Recovery Act (e.g., Panama Refining Company v. Ryan  and the famous “sick chickens case,” Schechter Poultry Corporation v. United States ) (McDonald 195-196), the so-called New Deal Court (one with a majority that found grounds for upholding the constitutionality of New Deal policies) began ignoring opportunities for finding improper delegations of power by Congress to the executive branch and, instead, developed permissive tests for allowing this to occur. In United States v. Rock Royal Co-operatives (1939), for example, the Court ruled that the Congress could grant the Secretary of Agriculture power to regulate commodity prices to advance the “‘public interest.’” Through such evolving and loosening of standards, then, the Court effectively refrained from interfering with congressional transfers of legislative power to the executive[i], and now much of what the federal government uses to regulate, bind, and interfere with our daily lives takes the form of so-called administrative law, which has not been directly enacted by a congressional statute but, instead, has been created by the various agencies and departments of the executive branch. In addition to the often also extensive state-level regulatory apparatuses that govern us, our federal masters are largely those of the executive.
As an equally unsettling complement to the above realization, Michael Greve discusses his (and Ashley Parrish’s) forthcoming GMU Law Review article on the current realities of administrative law, its abuses, and congressional dysfunctions:
Administrative law has ceased to respond adequately to the challenges posed by modern-day executive government. We suggest that the discordance reflects a mismatch between the debilities of the Congress and an administrative regime built on legislative supremacy.
Administrative law—in its New Deal and its modern, post-Chevron forms—presuppose a Congress that is jealous of its legislative powers. However, the modern Congress has increasingly dis-empowered itself. It consistently fails to update old statutes even when they are manifestly outdated or, as actually administered, have assumed contours that neither the enacting nor the current Congress would countenance. When Congress does legislate, it tends to enact highly convoluted and often incoherent “hyper-legislation.”
We examine the effects first on agencies, and then on courts and their doctrines. Knowing that there is no turning (back) to Congress, agencies are tempted to improvise policies lacking legislative authority. In turn, administrative law doctrines that were developed under very different institutional conditions start to bend.
We describe three increasingly common forms of agency action: (1) agency “re-writes” of statutes; (2) procedural shell games and manipulation; and (3) broad regulatory waivers without or in excess of a statutory warrant. We provide illustrations in the “old statutes” and “hyper-legislation” settings. Our principal old-statute example is the Clean Air Act and the protracted litigation over the EPA’s regulation of greenhouse gases, culminating (for now) in the Supreme Court’s decision in Utility Air Regulatory Group v. EPA. Our principal examples of hyper-legislation are the Dodd-Frank Act and the Affordable Care Act, including the pending litigation over the scope of the act’s subsidy and mandate provisions. . . .
Greve’s description of an “administrative regime built on legislative supremacy” brushes upon the root cause of one serious failure in our current federal governance (at least, when this is evaluated from a constitutional standpoint): our federal system risks the loss of (or has already lost) the legislative supremacy required for preserving even torturedly stretched interpretations of Article I, Section 1 and, hence, our remaining shadowy instantiations of republican rule by the people. Even if Congress, the president, and the Court started constitutionally cheating sometime during the New Deal by collectively allowing very permissive standards regarding what it means for Congress to properly (constitutionally) entrust the executive branch with discretion to enact certain regulatory rules/policies related to congressional statutes that are quite broad and often vague, such an “administrative regime” was still premised upon the notion of being effectively subordinate to and constrained by legislative supremacy—i.e., Congress was the ultimate authority over such executive rule-making and Congress would, in turn, intervene to stop rogue agencies from contravening Congress’s will. What Greve and Parrish’s research reveals is that our Congress today has “dis-empowered itself”; it has abandoned any real responsibility for actually being the ultimate patron. No longer does Congress revise its authority-granting-and-limiting statutes to ensure that agencies actually perform according to Congress’s “Article I” legislative will. And Congress does very little to nothing when the “agencies . . . improvise policies lacking legislative authority.” Instead of a federal system in which Congress rules the agencies, the federal government is increasingly becoming one of “(1) agency ‘re-writes’ of statutes; (2) procedural shell games and manipulation; and (3) broad regulatory waivers without or in excess of a statutory warrant.” In short, what was once a federal regime of executive rule-making under the watchful eye of Congress is becoming (or is already) a system of executive rule-making without effective connection to (and, hence, correction by) Congress. We are increasingly living under a federal government whose real form, in contrast to its constitutionally de jure separation-of-powers form, resembles the plot of a science fiction horror movie in which a servant computer/robot has assumed control over its creator-masters.
Peter Daniel Haworth, Ph.D., is Editor-in-Chief of Nomocracy in Politics and Director of the Ciceronian Society.
[i] Such delegations from Congress to the executive branch include both (1) delegations to executive departments and agencies under the traditional control of the president and the executive department heads (e.g., the above case involving Congress granting the Secretary of Agriculture certain powers to regulate commodity prices) and (2) delegations to independent agencies that are created by Congress and not directly controlled via the above-mentioned traditional hierarchy.
1. Forrest McDonald (with assistance by Ellen S. McDonald), A Constitutional History of the United States (Malabar, FL: Robert E. Krieger Publishing Company, 1986).