Random Thoughts on Nondelegation in Times of Emergency
…Provoked by that recent George Will column.
1. Delegation of discretion for making rules & regs dates to the founding; see, e.g., “An Act to regulate trade and intercourse with the Indian Tribes”, which authorized the executive to license “any proper person” to trade with “the Indian tribes”, while providing that such traders “shall be governed in all things touching the said trade and intercourse, by such rules and regulations as the President shall prescribe” (*). IOW, this act delegated governance of Indian commerce almost entirely to the executive.
2. Those unimpressed by “originalism” may nevertheless note the precedent established by the Emergency Banking Act of 1933 (**), which was likewise passed during a time of economic emergency, and which provided, inter alia:
During time of war or during any other period of national emergency declared by the President, the President may…investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange, transfers of credit between or payments by banking institutions as defined by the President….
…and additionally that,
…during such emergency period as the President of the United States by proclamation may prescribe, no member bank of the Federal Reserve System shall transact any banking business except to such extent and subject to such regulations, limitations and restrictions as may be prescribed by the Secretary of the Treasury, with the approval of the President….
Note also that EESA is simply another data point along the trend of delegating power to the bureaucracy and/or executive. E.g., FDA, FTC, OSHA, EPA.
3. IMHO, the real issue isn’t delegation of discretion to the executive, but rather the expansion of federal power more generally. Nobody cared about delegating power to the executive when the feds were confined to (say) regulating Indian commerce. But when (basically) every economic issue is a federal case, then suddenly the question of delegation becomes far more salient.
4. Times of emergency do tend to result in accretion of power to the center, mainly on the somewhat-valid rationale that the decisive exercise of power is necessary to adequately address the situation in question. While that rationale may indeed be valid, there is also something to be said for reversing such accretions once the emergency has passed, lest the Republic be endangered when the citizenry becomes inured to the exercise of tyrannical power (***).
(*) Act of July 22, 1790, 1 Stat. 137. See also Posner & Vermeule, “Interring the Nondelegation Doctrine”, 69 U. Chi. L. Rev. 1721, 1735-1736 (2002), which lists several other founding-era statutes featuring broad delegations of discretion to the executive. See also Footnote 61 of said article, which critiques, on originalist grounds, the Lawson article cited by Will.
(**) Act of March 9, 1933, 73 Stat. 1.
(***) …as Hamilton noted in Federalist #8.