Politics and the principle that elected legislators should make the laws.

• Author: Schoenbrod, David S.

[T]he most significant development in the law over the past thousand years.... is the principle that laws should be made not by a ruler, or his ministers, or his appointed judges, but by representatives of the people. (1) --Justice Antonin Scalia [T]he cabdriver asked me what's the hearing about. "[Its title is] 'does Congress delegate too much power to agencies and what should be done about it.'" He said ... "why do they want to hear about that? They know the answer." (2) I. HISTORY II. RATIONALIZATIONS A. The Constitution Was Amended to Allow Delegation B. Delegation Does Not Undercut The Purposes Of Article I C. Delegation Is Not Justiciable III. TOO BIG TO BE STRUCK IV. WHAT IS TO BE DONE?--FEDERALISM CASE LAW AS THE MODEL V. WHY NO BABY STEP IN AMERICAN TRUCKING? VI. WHY IT IS IMPORTANT TO UNDERSTAND THE POLITICS OF DELEGATION CASE LAW VII. CONCLUSION After the revolutionaries fought under the banner of "No Taxation Without Representation," the Framers adopted a Constitution that barred any new tax unless a majority of the representatives in a directly elected legislature personally took responsibility for it. (3) This Constitution required legislators to take responsibility not only for tax laws, but all other laws regulating the people, as well as all laws appropriating their money. (4) While Justices who had lived through these events were still on the Supreme Court, the Court in its first delegation case reasoned from the premise, shared by both parties, that it would be unconstitutional for Congress to delegate these legislative powers. (5) The early Congresses did not make a practice of delegating them. (6)

The principle that elected legislators should make the laws became a fundamental part of American folklore, where it remains to this day. Imagine the outrage if Congress dared enact a statute that made it a felony for an individual to commit an act that endangers public health, safety, or welfare, such acts to be listed in advance in regulations promulgated by the Attorney General. People would rightly condemn the statute on the ground that laws should come from elected lawmakers. (7)

The Supreme Court would strike this hypothetical statute under its void for vagueness doctrine. (8) That doctrine is designed not only to require notice of what the law prohibits, which this hypothetical statute does provide, but also to vindicate the principle that elected legislators should take responsibility for the law, which this statute would violate. (9)

The public would also be outraged if Congress delegated to the Internal Revenue Service the power to set income tax rates or delegated to the president carte blanche power to appropriate money. Yet, the reaction would be far different if Congress enacted a statute that makes it a felony for a person to emit pollution that endangers public health, safety or welfare, such emissions to be listed in advance in regulations promulgated by the administrator of the Environmental Protection Agency. Many of those who decry the delegations of legislative power hypothesized in the previous paragraphs would be untroubled by delegating to the EPA administrator. The New York Times editorial board opined that the Line Item Veto Act was unconstitutional because it delegated (in a limited way) the legislative power to appropriate funds, yet ridiculed the idea that that the Clean Air Act was unconstitutional because it delegated the legislative power to regulate private conduct. (10) Moreover, the Supreme Court would surely uphold the delegation to the EPA administrator. In fact, it recently upheld such a delegation in its unanimous decision in Whitman v. American Trucking Ass'n. (11)

The author of the opinion was Justice Antonin Scalia, who also wrote that "the most significant development in the law over the past thousand years.... is the principle that laws should be made not by a ruler, or his ministers, or his appointed judges, but by representatives of the people." (12) His opinion in American Trucking begins its discussion of delegation boldly: "Article I, [section] 1, of the Constitution vests '[a]ll legislative Powers herein granted ... in a Congress of the United States.' This text permits no delegation of those powers...." (13) It ends limply: "we have 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." (14) American Trucking is widely understood as repudiating the constitutional doctrine forbidding the delegation of legislative power or refusing to enforce it on the basis that the Court lacks a judicially manageable standard. (15)

This article takes a radically different view of American Trucking and the delegation case law in general. In it, I contend that at least some Justices believe that the Constitution does embrace the principle that elected legislators should make the law, and further believe it is judicially manageable. They shy away from enforcing it because it is politically unmanageable to stop Congress from delegating politically controversial choices to expert administrative agencies. The Justices find an outlet for their convictions by stopping delegations to governmental institutions and officers other than administrative agencies acting under the cloak of expertise. This article argues that the Court has on occasion stopped delegations of the legislative power that the Constitution vests in the Article I legislative process to states, law enforcement officers and juries, an agency lacking the cloak of expertise, Congress acting outside the Article I legislative process, and the president acting outside the Article I legislative process. This insight not only provides a way to understand seemingly disparate areas of case law, but also suggests that the Court does have a useful, although not all-powerful, role in enforcing the constitutional principle that elected legislators should make the law. That role could eventually have repercussions for delegations to agencies acting under the cloak of expertise.

Part I briefly explains how the Framers' robust idea of legislative responsibility deteriorated to the limp thing that is American Trucking. Part II surveys and rejects the various theories used to rationalize the Court's failure to stop delegation of lawmaking authority to administrative agencies: (a) the Constitution was implicitly amended to allow delegation; (b) delegation does not undercut the purposes of Article I; and (c) delegation is nonjusticiable because there is no judicially manageable test, it is a necessity of modern government, and the Court has so recognized this by never enforcing it except in two aberrant cases. Part III contends that, for at least some Justices, the real reason for not opposing delegation of lawmaking authority to administrative agencies is political: striking delegation all of a sudden would bring a withering backlash, especially from the legislators who would have to shoulder responsibility. Part IV shows that, despite this political difficulty, the Court has been taking baby steps to advance the delegation principle. Part V explains why the Court took no such baby step in American Trucking. Part VI identifies the importance of understanding the politics of the delegation case law.

This article does not argue that delegation is bad public policy nor does it argue in plenary fashion that the Constitution properly interpreted forbids it. I have made such arguments at length in a book. (16) This article is rather an effort to come to terms with what I have since learned about the political obstacles to enforcing the delegation doctrine.

1. HISTORY

   The notion that constitutional principle required that elected lawmakers make the law remained intact until the Progressive Era that bridged the late nineteenth and early twentieth centuries. The Progressives believed that the scientific method could be used to solve many public policy problems. In keeping with that belief, Congress began to enact statutes that instructed experts in federal agencies to deploy science to accomplish popular goals. (17) These statutes effectively left specifying the rules of private conduct up to the agencies.

   Yet, the Progressives did not see their statutes as delegating legislative power. They thought of the scientific method as producing sure results in the public interest. (18) By this logic, Congress had enacted the laws because the scientific method put certainty into statutory language that was otherwise open-ended.

   We now believe that the Progressives put too much faith in the scientific method and expertise. Scientists often do not come up with sure results, even in the seemingly hard sciences. (19) Even sure results cannot be translated into regulations without the regulator making policy and political judgments along the way. The agencies themselves, although styled as expert, are highly political. As former Secretary of Labor Robert Reich once put it, agency politics "confounds the ideal of scientific policy-making on which the legitimacy of regulatory agencies is based." (20) Lawmaking by expert agencies is politics by other means.

   Not knowing what we now know, the Supreme Court of the Progressive Era upheld the statutes on the theory that the expert agencies were applying statutory law to facts as they found them rather than making law. (21)

   Yet, it would be a mistake to conclude that the Progressives had jettisoned the principle that elected legislators must take responsibility for the laws. The Progressives sprang from a tradition that embraced separation of powers. (22) When it came to delegating legislative powers to plainly non-expert bodies, the Progressives were not blinded by their misplaced faith that science provided sure answers. The Supreme Court of the Progressive Era struck statutes in which Congress delegated its legislative power to juries or state legislatures. (23) Yet, although...