The Non-Delegation Principle

by Dave Schuler on July 7, 2014

This post is in support of a point I made in this comment thread at OTB to the effect that Congress has systematically delegated its powers to the executive branch for many years. The graph above illustrates the growth in federal laws over time. Now look at the growth of federal regulations, the executive branch’s elaboration on the law:

I have no opinion on how much federal law or regulation is necessary. Under the principle of “non-delegation” the executive branch is only empowered to promulgate such regulations as are necessary and proper to enforce the laws enacted by the Congress. I think that given the enormous growth in federal regulations over the years and the volume by which they outnumber the laws they’re purportedly intended to enforce the idea that the executive branch has limited itself to promulgating rules that are necessary and proper beggars credulity.

Whether more laws or more regulations can possibly be effective is an interesting and important question but it’s not the point I’m making here. The point I’m making here is that Congress has obviously abrogated its responsibility.

{ 10 comments… read them below or add one }

Modulo Myself July 7, 2014 at 10:02 am

Well, in the best case, regulations are going to be devised by people who have far more knowledge of the field than the average politician would. But both average politician and expert are going to have some common baseline of reality. In the worst case, you have what we have, which is a class of politicians for whom it is necessary that they appear teleported in from a past year of their voting bloc’s choosing.

But best and worst only apply is the real point of bitching about the American state is to engage with it. In the end, it’s hard to believe that this is the case. It seems to me that the bloc of Americans most devoted to complaining about how power isn’t balanced are quite happy to have this be the case, because they don’t want the regulatory state dragged down to the level of Mississippi and they don’t want Congress dragged out of the level of Mississippi.

PD Shaw July 7, 2014 at 10:27 am

I agree with the idea that Congress needs to pass better laws, particularly for two reasons. When Congress delegates to the President the job of deciding what the law is, the law is never settled, the President, or more likely the next President of an opposing party, can change the law. (One thing a person cannot tell by the number of pages of regulations is whether the regulations expand the role of government or circumvent it. A page of requirements and a page of exemptions are not the same.) The other reason is that it expands the role of the courts in evaluating the regulations, adding another layer of uncertainty.

The Hobby Lobby case would not have occurred if Congress had required contraception. The Religious Freedom Restoration Act is a law that controls the President’s exercise of discretion.

Modulo Myself July 7, 2014 at 12:08 pm

PD Shaw–
If Congress required contraception, there would have been a huge backlash from the same groups. The larger problem is that politicians are allowed to hide their opinions that impact on everyday life behind abstract nonsense. I’m guessing that for the majority of conservatives in Washington, their daughters are going to be on the pill, because having monogamous sex in any real relationship is considered to be healthy. And yet you will have never ever hear this from conservatives, because they have to, for whatever reasons, pretend that the traditional religious view of sexuality is in any way wise.

PD Shaw July 7, 2014 at 12:59 pm

MM: If the mandate is unpopular, then certainly the next Republican President can eliminate it entirely without concern. It would make far more sense if Congress had mandated contraception coverage, but gave religious exemptions as broad as needed to pass the ACA. Illinois’ contraception mandate exempts secular organizations with moral or religious objections., and its not like its a hotbed of social conservatism.

But here we are, for want of the desire to build a consensus or compromise on a relatively small issue in the ACA, the legislature allowed the SCOTUS to make this and all of the other decisions that the President has made without Congressional authority.

Modulo Myself July 7, 2014 at 2:40 pm

PD Shaw–

The problem is that what’s being compromised is whether women should have their medical insurance guided by science or by ideology. There’s two sides to the exemption, and pretending that it really doesn’t matter, because birth control is so cheap, is pretty disingenuous given the fact that we’re talking about an abstract thing like paying for health insurance in the first place. There’s really no negotiation to be made–women get treated like they are real people by the government and not pawns in some religious game. I’m not surprised that this Supreme Court ruled for Hobby Lobby. Had there been one more justice appointed by Clinton then the vote would have been 5-4 against Hobby Lobby. It’s a political struggle all the way through.

steve July 7, 2014 at 3:07 pm

Yes, Congress needs to write much better laws. Wasn’t it Sotomayor who got raked over the coals for saying that the appellate (?) courts make law? They have to. Congress writes vague laws so that they can avoid responsibility, but that then gets passed on to the executive branch and the courts. Congress has lots of power, if it ever decides to use it. Now that we are in an era where party affiliation and ideology dominate, they have mostly ceded that power to the executive branch, with the courts having the final say. Hence, the importance of packing the SCOTUS with members from your favored team. They can do the dirty work w/o having to worry about elections. Just pass a law, any law, then get the SCOTUS to say it means what you want.


PD Shaw July 7, 2014 at 3:56 pm

@steve, you are assuming that the SCOTUS decides what the law is; more often it doesn’t. A court will rule that a particular approach used by the government is not correct, like it did in the Gitmo cases, but it never told us what approach is correct. Environmental regulations have a tendency of going back and forth from the courts to the EPA for several years.

Regulatory uncertainty helps big business; they are the ones that can afford a fine or litigation or a legal team to guide them through thousands of pages of regulations.

mike shupp July 7, 2014 at 11:15 pm

Sure, there are a lot of laws, a lot of rules and regulations. It’d be better if someone pruned them drastically — a la Hammurabi, a la Solon, a la Justinian, a la Napoleon, even a la Moses.

But the thing is, look at those names. The number of people with an interest in pruning legislation and the political skills/sheer power to accomplish that is terribly small. There’s nobody at all in the present American government who seems able to qualify, no one at all who even wants that job.

steve July 8, 2014 at 8:54 am

PD- I should have also noted the importance of packing the Federal courts. As you know, most cases don’t get to SCOTUS. The lower level courts are tasked with defining what poorly written laws really mean.


Andy July 8, 2014 at 10:13 am

Too many people do not understand the difference between “regulation” and “regulations.”

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