The Separation of Powers: {Explained}

II. What’s Wrong With Congress’s Delegation of Its Lawmaking Power?

The Problem

What’s the problem?

When Congress delegates its lawmaking responsibilities, whether to independent agencies or executive branch officials, elected lawmakers can claim credit for “doing something” to address a problem but shirk responsibility for the regulatory results. This may be appealing to Congress, but the direct threat to individual liberty from this violation of the Constitution’s separation of powers is predictably grave.

The framers of the Constitution consciously designed a structure of separated powers, including checks and balances, to protect individual rights and limit government’s tyrannical tendencies. Not only are overall governmental powers divided to better protect liberty, but specific branches are given particular powers, some of which have to be exercised in particular ways. The framers thought the lawmaking power was the most dangerous threat to liberty, so special care was given to ensure the threat was minimized as much as possible.

Justice Neil Gorsuch explained in a dissenting opinion in Gundy v. United States that the framers “went to great lengths” to make lawmaking difficult, including fracturing the legislative task among two houses of Congress and a president, each with different constituencies, lengths of office, and modes of election. The constitutional gauntlet required to make law is a conscious feature of the charter’s longest article, not a bug.

Because legislative mandates on private conduct are the most serious threats to liberty, legislation requires carefully-proscribed and coordinated action to ensure the resulting laws will benefit from compromise, consensus, and sensitivity to different interests (or factions), all of which were designed to lessen “the danger of those errors which flow from want of due deliberation, or . . . which proceed from the contagion of some common passion or interest,” as Alexander Hamilton wrote in Federalist 73.

From a design standpoint alone, it is inconceivable that the framers would have taken such great care in whom they delegated the people’s lawmaking power, how those lawmakers are elected, and how they must cooperate to make laws, but didn’t care a whit if this “most dangerous” power was later re-delegated to individual, unelected administrators.

No current justice of the Supreme Court disputes that the rule against Congress delegating its lawmaking power is crucial to the Constitution’s separation of powers. The sticking point over the course of the last 85 years has been how to properly enforce the separation of powers. What standard should the courts use to judge congressional delegations and how searching or deferential should judges be in applying it?

For most of the last 85 years, the Supreme Court not only applied the wrong legal standard that seriously restricts judicial policing of congressional delegations, but it applied an increasingly feeble version of that standard, the “intelligible principle” test. Under this test, courts consider whether Congress specified an “intelligible principle” to guide an agency in exercising discretion to make law. Although the original version of the test was problematic enough, the lax way it was applied in subsequent decades sanctioned practically every broad and vague delegation of lawmaking power to regulatory agencies.

Justice Gorsuch’s dissent in Gundy convincingly explains why such a weak “mutated” test is inadequate to prevent delegations of lawmaking power and has no foundation in the text of the Constitution, which provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”

This enfeebled test led to broad and absurdly vague delegations of lawmaking power from Congress to agencies, many of which have nonetheless been upheld by courts. Examples include: OSHA is instructed to develop and mandate “workplace standards” (i.e., workplace mandates) that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” The Act has no limit on what is “appropriate.” EPA is required in the Clean Air Act to issue ambient air standards that are “requisite to protect the public health.” Several broadcast related statutes gave FCC the power to regulate numerous issues with mandates that are in “the public interest, convenience, or necessity.”

No statute can be perfectly clear in all its applications, and thus, some gap-filling is almost always necessary—whether by administrative rulemaking, executive enforcement, or judicial construction. Yet there is a wide continuum between unavoidable and interstitial (i.e., small) gap-filling enterprises and wholescale delegations of vast domains of legislative-rulemaking authority to different subject-matter legislatures (called regulatory agencies) to define completely new rights, duties, and obligations only vaguely hinted at by the authorizing statutes.

Chief Justice John Marshall famously distinguished in Wayman v. Southard (1825) “those important subjects, which must be entirely regulated by the legislature itself from those of less interest, in which a general provision may be made, and power given to those who are to act . . . to fill up the details.” Without meaningful judicial enforcement of that distinction or something like it, Congress is encouraged to delegate huge swaths of legislative power over different subject matters, with the merest instruction that an entire policy area be regulated “in the public interest.”

That some enforcement discretion may be necessary is no excuse for extreme judicial deference. Some government searches are necessary in the enforcement of criminal laws too, but that doesn’t mean anything goes. Based on a body of court precedents, we now know that certain types of searches are reasonable and others are clearly unreasonable. And still others continue to present difficult line-drawing problems. Thus, the courts will never be free from making the final calls in hard cases. But the resolution of these hard cases is a special blessing to the legal system and the rule of law, because it helps better define the line that divides the two extremes, all of which has a helpful effect in guiding officials to enforce order without abusing individual rights.

The delegation problem concretely harms people in several quantifiable and unquantifiable ways. By several measures, the sheer number and volume of regulations issued by regulatory agencies now dwarfs the laws enacted by Congress. From 1995–2016, federal agencies issued 88,889 rules and Congress passed 4,312 laws. Qualitatively, the framers anticipated that lawmaking would be more sensitive to the liberties of the people if it was done by representatives who are directly elected by different constituencies and have to openly debate and compromise on policy. Broad delegations of rulemaking power eliminate almost all those safeguards, and the resulting increase in cost of regulation in terms of reduced economic growth, job loss, lost wages and higher prices, and lost freedoms is predictable.

The Solutions

What are the solutions?

Revive the original understanding of nondelegation doctrine to ensure that Congress only delegates responsibility to agencies or executive officials “to fill up the details.”

Keyhole solution for older delegations or the courts’ inability to vigorously police unlawful delegations: enact something similar to the REINS Act. Even in cases where some delegation may be necessary or it’s too difficult to get Congress to repeal older delegations, the reform law would prevent an agency from finalizing any rule with a significant impact until it is delivered in draft form to Congress and Congress enacts it (or not).

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PLF is a national nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. We sue the government in court when our clients’ rights protected by the Constitution are violated, and advocate for legislative and regulatory reforms in the other branches of government. Started in 1973 in California, PLF now seeks reform across the country, including suits filed nationwide, scoring precedent-setting victories for our clients, with an unmatched track record at the United States Supreme Court.