Whether Congress can cede its legislative power to other branches of government leads to the constitutional issue of the nondelegation doctrine. (Although I do not remember what was on my high school Elks constitution exam, I am confident that this rather arcane topic of nondelegation was not tested.) This doctrine says that since the Constitution vests all legislative power in Congress, Congress cannot surrender this authority to another branch of government. As with many other absolutes in our fundamental charter, however, this seeming absolute is not absolute, and it illustrates why those who think it should be easy to read and easy to apply our Constitution don’t know stuff from Shinola. The absolute principle was undercut in the Constitution itself when it gave the President a role in legislation through the veto provision. Furthermore, it was soon clear that the government could not function if Congress had to fill in every picayune detail of actions it legally authorized. Some discretion had to be employed by those executing a law.
Ninety years ago, the Supreme Court held that Congress could delegate legislative authority to the executive branch as long as it supplied an “intelligible principle” to guide the executive in its use of the delegated legislative authority. The Supreme Court found a legislative delegation unconstitutional a couple of times during FDR’s New Deal, which helped to precipitate a constitutional crisis, but not since.
The nondelegation doctrine, however, continues to be discussed, mostly by conservatives. Their targets are regulatory agencies, those bodies who have given us safer drugs and cleaner air and so on. The statutes authorizing many agencies often do give them broad authority with few principles to guide their discretion. Powerful corporations suggest that the nondelegation doctrine should be enforced to prevent many regulatory actions, thus allowing the companies to make bigger profits. My prediction has been that the doctrine would regain traction with at least some of the conservatives on the Supreme Court. It would fit in with the trends of increasing corporate power and less protection for the public generally.
Conservatives, however, also seek to uphold presidential power. This presents a dilemma for conservative jurists. If “national security” and “national emergency” are constitutionally valid, intelligible principles that allow the president to exercise his actions on tariffs and arms sales and border wall spending without violating the separation of powers doctrine, then it should be almost impossible to strike down regulatory actions with the nondelegation doctrine. This assumes, of course, that the ever more conservative Supreme Court justices apply principles consistently.
But let me return to where I started. Most Americans know little about the Constitution or even the basic structure of government. A recent email from the New-York Historical Society said that “only 23% of American eighth graders are able to demonstrate proficiency n civics, and only 18% are able to demonstrate proficiency in U.S. history.” Haven’t you ever wondered, with good cause, whether those who represent you know as much as an eighth grader? We all should be able to cite examples casting doubt on any such assumption, much less that they understand the more complex constitutional issues. For example, did Congress think about the nondelegation doctrine when it enacted the laws granting the president broad legislative authority? Does the president think about separation of powers when he legislates?
I think back to the constitutional test I once took. Perhaps we ought to ask candidates for office to take a test on the Constitution as well as one on United States history so we can factor those results in when we vote. Perhaps the $400 that I feel that the Elks Club still owes me could help fund this exercise in civic responsibility.