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Why We Need A New Constitution: Part 13 of 21

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DELEGATION AND
THE ESCAPE FROM THE CONSTITUTION

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 One, Section One (emphasis supplied)

A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. [1]

- James Madison, Federalist 20

Article One, Section One of the Constitution states in no uncertain terms that "All legislative powers herein granted shall be vested in a Congress of the United States . . . ."[2] This reflects John Locke's view, stated in his Second Treatise, that "the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands."[3] This Principle was etched indelibly into our Constitution in Article One, Section One, and was well understood by the authors of The Federalist. According to John Jay, the Framers had "given the power of making laws to the legislature . . ."[4], and Hamilton wrote that "the legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated."[5] This was a power that could not be transferred by the Legislative Branch; according to Madison, "[a]s the people are the only legitimate fountain of power . . . it seems strictly consonant to the republican theory to recur to the same original authority . . . whenever it may be necessary to enlarge, diminish, or new-model the powers of government . . . ."[6] Therefore, it was no surprise when Chief Justice Taft stated in 1937 that "it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch . . . ."[7]

Under our constitutional system, there are sound reasons to prohibit delegation of this Legislative power. To permit the concept of Delegation would allow the laws created by delegated authorities to evade the system of Checks and Balances created by the Framers: under a constitution of delegated Legislative authority, the People would have no check against unpopular legislation, a check which was built into the Constitution expressly for that purpose. According to Madison, the Bicameral System instituted in the Constitution would insure that "[n]o law or resolution [would] be passed without the concurrence . . . of a majority of the people . . . ."[8] But lawmaking by an unconstitutional "Administrative" Branch would allow evasion of this Bicameral requirement. If such a Branch were to pass a law that the People did not approve, the People would be helpless, since not only would they not know who voted for the law, there would be no one to vote out, since Administrative officials are appointed, not elected by the People. [9] Furthermore, even if a counter-law were to be passed by the House of Representatives, that counter-law could be checked by the Senate, President, or Supreme Court - the three checks against popular action in the Constitution. The same would be true were the Supreme Court given Legislative power. Again, any attempt by the People to check Judicial lawmaking[!] directly would itself be checked by the Constitutional bodies existing for that purpose. For this reason, Delegation was strictly prohibited by our Framers. As Hamilton stated,

[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.[10]

But here was the dilemma: a Government must govern, and a constitutionally crippled Government could not constitutionally govern. Thus, a Bicameral Congress hobbled by an institutional delay was forced to delegate its exclusive Legislative authority. With the rise of industry in the Twentieth Century came a veritable explosion of Delegation of Legislative authority by Congress to such entities as the Federal Communications Commission, the Food and Drug Administration, the Environmental Protection Agency, the Interstate Commerce Commission, the Securities and Exchange Commission, the Federal Trade Commission, the Internal Revenue Service, the Occupational Safety and Health Administration - the list goes on and on. As Justice White noted in I.N.S. v. Chadha, 462 U.S. 919 (1983), "legislative authority is routinely delegated to the Executive Branch, to the independent regulatory agencies, and to private individuals and groups."[11] According to Justice White, "the effective functioning of a complex modern government requires the delegation of vast authority which, by virtue of its breadth, is legislative or 'quasi-legislative' in character . . . ."[12] And though it was the self-appointed umpire of constitutional legitimacy, the Supreme Court nonetheless sanctioned this unconstitutional process: "[T]he Court, recognizing that modern government must address a formidable agenda of complex policy issues, countenanced the delegation of extensive legislative authority to Executive and independent agencies."[13] The scope of Delegation escalated as initial restrictions began disappearing: "Theoretically, agencies and officials were asked only to 'fill up the details,' . . . [i]n practice however, restrictions on the scope of the power that could be delegated diminished and all but disappeared. In only two instances did the Court find an unconstitutional delegation."[14] Delegation mushroomed. Over time, Congress not only forfeited its constitutional role as the exclusive Legislative body, but also the primary Legislative body. As Justice White observed,

The wisdom and the constitutionality of these broad delegations are matters that still have not been put to rest. But . . . by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law - the substantive rules that regulate private conduct and direct the operation of government - made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. [15]

What are generally referred to as Administrative "regulations" or "rules" are, in fact, laws. As Hamilton stated, the "essence" of the Legislative authority was "to enact laws, or, in other words, to prescribe rules for the regulation of the society . . . ."[16] Justice White wrote that

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There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term. The Administrative Procedure Act, 5 U.S.C. § 551(4), provides that a 'rule' is an agency statement 'designed to implement, interpret, or prescribe law or policy.' When agencies are authorized to prescribe law through substantive rulemaking, the administrator's regulation is not only [given] due deference, but is accorded 'legislative effect' . . . These regulations bind courts and officers of the Federal Government, may pre-empt state law . . . and grant rights to and impose obligations on the public. In sum, they have the force of law.[17]

Over time, a new Branch of Government was created without the benefit of formal approval by the States or the People as required by the Constitution in Article Five. According to Justice Jackson, "The rise of the administrative bodies probably has been the most significant legal trend of
the last century. . . . They have become a veritable fourth branch of the government, which has deranged our three-branch legal theories."[18] On this road there was no terminus. Justice Sutherland, in United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 327 (1936), "used language implying that there is virtually no Constitutional limit to Congress's power to delegate to the President authority which is 'cognate' to his own constitutional powers.'. . . In brief, the President's duty 'to take care that the laws be faithfully executed' becomes often a power to make the laws."[19] And the Executive Branch did indeed exercise its newly granted power to make laws. As Senator James Abourezk described the situation in 1975, "[l]ast year the Congress enacted 647 public laws while approximately 6,000 administrative rules were adopted by 67 Federal agencies, departments, and bureaus. More law, in the sense of rules governing our society, is produced by the executive branch than is produced by the national legislature."[20] According to Levitas and Brand (1984):

[I]f Thomas Jefferson, James Madison, or any of the other Founding Fathers were to visit us today, they would be . . . shocked by the existence of administrative agencies and by the delegation of lawmaking power to this part of the executive. . . . As noted by Justice Jackson,
administrative agencies have been called quasi-legislative, quasi-executive, or quasi-judicial, as the occasion required in order to validate their functions within the Separation of Powers scheme of the Constitution. In effect, all recognized classifications have broken down and the qualifying prefix 'quasi' is a smooth cover that we draw over confusion as we might use a counterplane to conceal a disordered bed. [21]

Tugwell (1976) viewed the existence of the "fourth branch" of Government as conclusive proof of the inadequacy of the Constitution, an inadequacy which made escape from the Constitution necessary:

[B]ecause of its own incapacities . . . the Congress has created the regulatory agencies. They are justified by the implication that they are necessary to protect the public. They deny altogether the principle of separation. . . . they carry on highly complicated technical operations and are largely self-governing. Their immense bureaucracies constitute a large part of modern government. Their existence is a constant reminder that escape from the Constitution has been accomplished on a grand scale and without notable objection. [22]

END PART 13: TO BE CONTINUED

FOOTNOTES

[1] Federalist 20, p. 97 (Madison).

[2] (emphasis supplied).

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[3] "Second Treatise," §141, John Locke, 1 Founders' Constitution 618.

[4] Federalist 64, p. 328 (Jay).

[5] Federalist 78, p. 373 (Hamilton).

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Barry Krusch is president of Intelligent Communities, Inc., sponsors of The Intelligent Community Initiative. He is also author of 2 books, The 21st Century Constitution and Would The Real First Amendment Please Stand Up?

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