Mes­sage to Con­gress: Lim­ited govern­ment re­quires a lim­ited chief ex­ec­u­tive

The Buffalo News - - OPINION - Washington Post Writ­ers Group

WASHINGTON – Soon, in a fed­eral court that few Amer­i­cans know ex­ists, there will come a rul­ing on a con­sti­tu­tional prin­ci­ple that to­day barely ex­ists but that could, if the ju­di­cial branch will re­sus­ci­tate it, be­gin to rec­tify the im­bal­ance be­tween the leg­isla­tive and ex­ec­u­tive branches. It is the “non­del­e­ga­tion doc­trine,” which ex­presses John Locke’s justly fa­mous but largely ig­nored ad­mo­ni­tion that in­sti­tu­tions like the U.S. Con­gress, vested with the power “to make laws, and not to make leg­is­la­tors ... have no power to trans­fer their au­thor­ity of mak­ing laws, and place it in other hands.” The doc­trine’s re­vival might re­sult from the Peanut But­ter Cri­te­rion.

Act­ing un­der au­thor­ity im­prov­i­dently given by Con­gress to pres­i­dents in Sec­tion 232 of the Trade Ex­pan­sion Act of 1962, the cur­rent pres­i­dent has, in the name of na­tional se­cu­rity, im­posed tar­iffs (taxes, col­lected at the bor­der, paid by Amer­i­can con­sumers) on steel and alu­minum im­ports from, among other na­tions, Canada, a U.S. mil­i­tary ally. How Canada threat­ens U.S. na­tional se­cu­rity by sell­ing in­ex­pen­sive met­als to U.S. de­fense in­dus­tries, thereby ef­fec­tively in­creas­ing the U.S. de­fense bud­get, is a puz­zle for another day.

The U.S. Court of In­ter­na­tional Trade, which sits in New York, is mulling the ar­gu­ment, made on be­half of Amer­i­can steel im­porters and for­eign steel pro­duc­ers, that the dis­cre­tion that pres­i­dents en­joy un­der Sec­tion 232 is so vast that it amounts to un­con­strained law­mak­ing. Hence it is an un­con­sti­tu­tional del­e­ga­tion of leg­isla­tive power. The Trump ad­min­is­tra­tion not only makes the du­bi­ous as­ser­tion that im­ports have im­per­iled vi­tal do­mes­tic met­als man­u­fac­tur­ers, it breezily says na­tional se­cu­rity de­pends on a vi­brant econ­omy that is im­per­iled by im­ports. How the ad­min­is­tra­tion squares its fears about the dan­ger­ous fragility of the U.S. econ­omy with the pres­i­dent’s boast­ing about the econ­omy’s awe­some strength is another puz­zle.

Dur­ing oral ar­gu­ment in De­cem­ber, one judge on the three-mem­ber panel asked a lawyer de­fend­ing the ad­min­is­tra­tion’s po­si­tion if there is any prod­uct that the pres­i­dent does not have the con­gres­sion­ally con­ferred power to re­strict im­ports on na­tional se­cu­rity grounds: “Could he, say, put a tar­iff on peanut but­ter?” The judge got a fog­gily eva­sive answer.

Gary Law­son of Bos­ton Uni­ver­sity School of Law has ar­gued that the Con­sti­tu­tion’s struc­ture and a “back­ground” or “em­bed­ded” prin­ci­ple per­mit Con­gress to del­e­gate to pres­i­dents dis­cre­tion re­gard­ing matters “an­cil­lary” to a statute but not re­gard­ing “fun­da­men­tal matters.” He says that the Con­sti­tu­tion’s Framers were not re­dun­dant when they said Con­gress could make laws “nec­es­sary and proper” for the ex­er­cise of an enu­mer­ated power (e.g., “to reg­u­late com­merce with for­eign na­tions”). The two words have in­de­pen­dent mean­ing: A “proper” law is not only nec­es­sary but con­sis­tent with, among other things, the sep­a­ra­tion of pow­ers. Larry Alexan­der of the Uni­ver­sity of San Diego School of Law and Saikr­ishna Prakash of the Uni­ver­sity of Vir­ginia School of Law have ar­gued that a law can­not prop­erly give to the pres­i­dent dis­cre­tion to “make rules for the gov­er­nance of so­ci­ety,” which is leg­is­lat­ing.

As when a pres­i­dent has an un­re­view­able power to im­pose taxes (tar­iffs) on an un­lim­ited num­ber of things (peanut but­ter?) in the name of an un­cir­cum­scribed goal (na­tional se­cu­rity). Not since the Supreme Court’s ac­com­mo­da­tion of – ac­tu­ally, ca­pit­u­la­tion to – the New Deal, has the court held (in the 1935 Schechter case) that although Con­gress may per­mit an ex­ec­u­tive agency or other en­tity to make sub­or­di­nate rules within pre­scribed lim­its, it must stip­u­late poli­cies and stan­dards. In another 1935 case, the court voided a con­gres­sional grant of vast dis­cre­tion to the pres­i­dent be­cause, in the grant­ing statute, Con­gress did not de­clare or even in­di­cate any pol­icy or stan­dard to guide or limit the pres­i­dent.

If the Court of In­ter­na­tional Trade re­vives the non­del­e­ga­tion doc­trine, this might reach the Supreme Court, which up­held Sec­tion 232 in a 1976 case that did not turn on the con­sti­tu­tional ques­tions now pre­sented. The court might flinch from the task of defin­ing “ex­ces­sive” del­e­ga­tion that makes a law not “proper.” How­ever, that task – judg­ing – is the court’s rai­son d’etre.

The Con­sti­tu­tion’s first words af­ter the Pre­am­ble are: “All leg­isla­tive pow­ers herein granted shall be vested in a Con­gress.” All. James Madi­son was, as wise people usu­ally are, an ac­com­plished wor­rier who rarely wor­ried about the wrong things. It turns out, how­ever, that he did when, in Fed­er­al­ist 48, he wor­ried about Con­gress “draw­ing all power into its im­petu­ous vortex.” For gen­er­a­tions, Con­gress has been a cen­trifu­gal ma­chine, spin­ning off pow­ers. Lim­ited govern­ment re­quires a lim­ited pres­i­dent, which re­quires lim­its on what Con­gress can give away.

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