Enforce The Nondelegation Doctrine

By routinely violating the very first rule in our Constitution, Congress has caused some of the worst problems in government today

The United States is bound by a Union of laws, working to uphold a federal structure built from careful compromises that limit intrusive government authority on sovereign states and a free people. While our legal traditions are based in English Common Law, precedent can never justify extra-constitutionalism; even if an action or institution were backed by two hundred years of precedent, that action must be swiftly ended should it be found unconstitutional. This is the bedrock of our entire legal-political system.

This fact established, one need only look so far as the first line of the very first article of the Constitution to find a mandate broken. Article 1, Section 1 of the Constitution declares, “All legislative powers herein granted shall be vested in a Congress of the United States.” The Article can be equally read as ‘Neither the Executive nor Judiciary has the power to change the law.’ This idea that Congress cannot delegate its legislative powers to the other branches of government is known in the legal world as the ‘nondelegation doctrine’. The founders, steeped in enlightenment ideals on government, designed a system that intentionally separates political powers into co-equal, competing branches to both limit federal authority and to force deliberative compromise. Despite being one of the most fundamental principles of our government, (rightly occupying the first line of the blueprint of the federal structure) the idea of enforcing the nondelegation doctrine has been politicized by academics and even Supreme Court Justices who argue that enforcing the doctrine is too extreme. But the facts show that from a long disintegration of Congressional will to actually take on the hard task of legislating precisely, legislative powers have been increasingly delegated to unelected federal agencies, which has caused some of the most egregious actions of the federal government today.

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Let us analogize the failures of the federal government to the government of a small town. In the smallest towns, there is still the executive, legislative, and judiciary: the mayor, the town council, and the local courthouse, respectively. As with the federal government, the primary concern of a town legislature is to tax, appropriate spending, and secure the safety of the community. The mayor alone can’t control taxes—only the town council can do that because a financially illiterate mayor could potentially bankrupt the town. Similarly, the mayor alone cannot simply declare things illegal—what if the mayor really hates the sound of barking dogs? Overnight, there is a town ordinance against dog ownership. When the power to ban dogs is rightfully only vested in a town council, the councilmen elected by dog owners will resist with vigorous debate. “The right to own pets is a basic freedom only a tyrant would take away!” concludes any reasonable council. Fido is saved. While the mayor would probably lose the next election after banning canine companionship, the point is that when a deliberative body of representatives makes a decision, they are less inclined to sweepingly obstruct liberties than someone in whom unitary executive power is vested.

But let us imagine that the mayor did have the authority to ban dogs. Perhaps a century ago a more puritanical town council passed a vague law banning ‘unusually dangerous’ pets, with little specification of the exact meaning of ‘dangerous’. Even worse, let’s say the mayor had control of a ‘Bureau of Animal, Tyke, and Feline Enforcement’ with its own set of officers and officials, unbeholden to the council. Now, and this would truly be extreme, imagine that this so-called BATFE (or ATF for short) could interpret the vague anti-pet statute, amending which pets were considered dangerous without any say from the town council. Dogs could be widely accepted as legal for twenty, thirty years even, but then one day the town ATF publishes a letter declaring that all dogs are dangerous because of their unusually sharp teeth. While obviously absurd, the true evil of this idea is discovered upon the revelation that, per the original law, it is now a felony offense to own a dog. Suddenly almost half the town’s population are felons! Pet owners are incensed, but what can they do? The leadership of BATFE is unelected. The town’s non-pet-owners, seeing the existence of the Bureau, have even become afraid of the danger imposed by unregulated ownership of pit bulls and pufferfish—“we can’t expect the town council to regulate which animals are dangerous; they’re not veterinarians!” they cry.

No town in their right mind would even think of allowing this madness. The architects of our system of government certainly wouldn’t either. When broad power to enforce and even effectively change the law is delegated to a bureau, agency, commission or other entity that is not representative in nature, it is only a matter of time before that entity creates dangerously despotic mandates that would be laughed down if proposed on the floor of a legislative body. Yet this very thing happens routinely in America today—by organizations like the very real ATF, or Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), a division of the Department of Justice.

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Congressional legislation gives the ATF the power to interpret the legality of firearms and accessories; the ATF publishes ‘rulings’ on the legality of everything from rifle stocks to ammunition construction. In effect, this changes federal law; for years a type of stock could be considered legal, but upon the ATF’s administrative reinterpretation that said stock contradicts federal gun regulations, they could be criminalized. This was the case in the ATF’s review of the legality of bump stocks: after President Trump ordered the DOJ to review their legality, Justice Department officials magically discovered a “fresh new look” that declared bump stocks illegal because they imitate machine guns. This contradicts the ATF definition of a machine gun as a weapon that discharges “more than one shot without manual reloading, by a single function of the trigger.” (Bump stocks simply increase the speed of trigger actuation, not the number of rounds per pull).

The point of enforcing the nondelegation doctrine is not just that delegating legislative authority hurts gun owners: it hurts everyone because it allows practically every unelected agency of the Executive to gain sweeping power. Take for example, the powers afforded to the Drug Enforcement Administration (DEA). Marijuana is a Schedule I drug, meaning that the federal government considers it to be extremely dangerous and have no medical uses. The ‘schedules’—DEA classifications for the addictiveness and medical value of drugs—were created by an act of Congress: the Controlled Substances Act of 1970. Higher schedules proportionally impact the criminal prosecution of drug users and prohibit medical research on the lifesaving properties of drugs. Naturally, one would suppose, the scheduling of drugs cannot be changed without an act of Congress, as only Congress has the power to change the law. But in the Act, Congress simply gave the authority to alter the schedules to executive agencies. In fact, the DEA publicly flaunts on their own website that they have the power to arbitrarily change the scheduling of drugs!

“The [Controlled Substances Act] also provides a mechanism for substances to be controlled (added to or transferred between schedules) or decontrolled (removed from control)… Proceedings to add, delete, or change the schedule of a drug or other substance may be initiated by the Drug Enforcement Administration (DEA), the Department of Health and Human Services (HHS), or by petition from any interested party, including: [t]he manufacturer of a drug, [a] medical society or association… [even an] individual citizen.”

You read that right. Hypothetically, the DEA could declare ibuprofen a Schedule I drug because of a random citizen’s request. So much for debate on the House floor.

Why would Congress pass laws like this? Quite simply: they have been lazy. It is far more difficult for Representatives to write a statute identifying specific offenses than it is to write a broad mandate and boast being ‘tough on crime’.

Opposition to nondelegation stems from the dangerous belief that we have somehow evolved past the need for checks and balances because of ‘good government’, or that our system is outdated because of its conception by statesmen of the eighteenth century. The truth is that the same debates, indeed the same problems, that defined the fundamental discourse of the 1780s continue to define our modern political landscape; governments still derive their legitimacy from the consent of the governed, and yes, governments certainly can still become corrupt!

The Republic is deeply threatened by the atrophy of legislative sovereignty, which has inevitably caused the misaligned aggrandizement of the executive branch and finally culminated in the utter breakdown in the constitutional legitimacy of much of the federal government. We have been so inundated by the same tune of, “our system is broken” that we forget the serious veracity of this very serious accusation. Our system is broken. This is not because of flawed design, but because of flawed execution.

Enforce the nondelegation doctrine, yes, even if it invalidates most of the federal government. We do not let things stand because of their long tradition of existence in this constitutional republic. Only by ensuring the constitutionality of all Executive powers and forcing Congress to risk sullying their reputation by creating unpopular laws, can we hope to begin fixing the many serious problems of our government today.

One thought on “Enforce The Nondelegation Doctrine

  1. Jeff Carpenter Reply

    Powerful argument. Well written with entertaining bait and switch.

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