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Why We Need A New Constitution: Part 14 of 21

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Because Congress had delegated its exclusive Legislative authority, a popular backlash arose against Government bureaucracy in the 70's, which led to the increasing use of a device which would allow the People to regain control over the unconstitutional Fourth Branch, known as the one-house Legislative Veto. Utilizing this provision, Congress could delegate Legislative authority, but any law passed by one of the Administrative bodies could be vetoed by either House of Congress. Strictly speaking, the Legislative Veto was unconstitutional, but Delegation itself was unconstitutional, and the Veto attempted to restore some sort of balance. Unfortunately for the Democratic Congress, it decided exercise this power over a Republican Executive Branch. This attempt by the Legislature to check the Executive led the Executive Branch to look for a case it could sponsor for review by the Supreme Court, and hold the Legislative Veto unconstitutional. The Executive Branch found the case - I.N.S. v. Chadha. [1] And, in one of its least shining hours, the Supreme Court held the Legislative Veto unconstitutional (voiding nearly 200 laws utilizing the Veto in one fell swoop [2]), while at the same time allowing the unconstitutional Delegations to continue!

The Supreme Court rejected the Legislative Veto with this reasoning: "[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives - or the hallmarks - of democratic government . . . ."[3] The Court, after noting "the obvious flaws of delay, untidiness, and potential for abuse" in our constitutional structure, stated that

[T]he Framers ranked other values higher than efficiency . . . The choices we discern as having been made in the Constitutional Convention impose burdens of governmental processes that often seem clumsy, inefficient, even unworkable, but . . . [t]here is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided . . . . [4]

Yet, in a textbook example of the Supreme Court's selective attention, the Court failed to apply this same reasoning to the Delegation Doctrine! Justice White, dissenting, attacked this Judicial doublethink (reasoning which simultaneously held that agency rulemaking was lawmaking - and therefore a one-house Legislative Veto DID violate the Bicameral requirement - AND that agency rulemaking was not lawmaking - and therefore DID NOT violate the Bicameral requirement!), and pointed out the necessity of escaping from the Constitution:

Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law-making function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. [5]

The battle over the Legislative Veto and the general acceptance of the Delegation Doctrine by the Supreme Court reveal that the nature of our Government has changed dramatically. The Delegation Doctrine is only one example of the phenomenon of escalation, which as Eliot Aronson described, is "self-perpetuating. Once a small commitment is made, it sets the stage for ever-increasing commitments. The behavior needs to be justified, so attitudes are changed; this change in attitudes influences future decisions and behavior. [6] And escalation has indeed occurred in the political arena. According to Justice White, "From the summer of 1787 to the present the Government of the United States has become an endeavor far beyond the contemplation of the Framers."[7] Aronson's "self-perpetuating" insight explains this - people are likely to accept the political status quo simply because they accepted the status quo before. The tendency to accept the accepted is accompanied by the quiescent emergence of rules. New laws are formed. New interpretations are made. New actions are taken. In this manner, where a Government is allowed to "evolve," a Government entirely different from the one first conceived can be established.

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The Framers of our Constitution were well aware of this Escalation Principle. As Edmund Randolph wrote to the Speaker of the Virginia House of Delegates on October 10, 1787, ". . . a bad feature in government, becomes more and more fixed every day. [8] Madison stated in The Federalist that "abuses . . . of long standing, would [take] deep root, and would not easily be extirpated,"[9] and warned that these abuses would provide precedents, each one of which would be "a germ of unnecessary and multiplied repetitions."[10] Thus, these abuses or "usurpations of power"[11] would be "but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding."[12] Hamilton warned that if "an improper spirit of any kind should happen to prevail" in society, "that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions."[13] Hamilton reiterated the "germ" metaphor of Madison: "[t]here is a contagion in example which few men have sufficient force of mind to resist."[14]

This ability to surreptitiously change the nature of Government through escalation meant that Government would not only shift the allocation of powers through Delegation, but would also gradually assume new powers, powers not accounted for when the terms of office of our representatives and our system of Checks and Balances was established. Due to the Principle of Escalation, people have grown used to usurpations of power by the Government. Whether the issue is PAC money, the shift of Legislative power from Congress to the Presidency and the Supreme Court, the Incumbency Effect, or even unpalatable societal developments like the ever-increasing National Debt, we have become inured to regression. And each acceptance of a small digression from the norm has laid the foundation for our acceptance of future digressions, leading to the emergence of new rules and, ultimately, a new form of Government.


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[1] See the discussion in the book Chadha: The Story of an Epic Constitutional Struggle, by Barbara Craig (Oxford University Press: 1988), and especially Chapter 6 (and pages 165 and 184).

[2] Chadha at 967.

[3] Chadha at 944.

[4] Chadha at 959.

[5] Chadha at 968.

[6] The Social Animal, Elliot Aronson, 3rd Edition (Freeman: 1980), p. 114.

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[7] Chadha at 978.

[8] 3 Records 127.

[9] Federalist 50, p. 259 (Madison).

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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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