Sunday, March 29, 2009

Try again, George Will

George Will sometimes makes good arguments. This would be a good argument, except for its glaring flaws.
Will contends that the reason the recent economic stimulus package makes people feel uneasy is that it violates the non-delegation doctrine by providing regulatory latitude to the executive branch. Once again, old George Sixpack has his finger on the pulse of America. What are people talking about in beauty parlors and local taverns across the land? Unemployment? Crime? American Idol? Nope, it is the Constitutional doctrine of non-delegation that is buzzing uneasily on the lips of the average American.

Would that it were so, George. Would that it were so.

Those of us who are familiar with the Constitutional doctrine of non-delegation, and with Constitutional doctrines more generally, should be choking on our lattes. First of all, Constitutional doctrines are merely ideas of Constitutional thought, not universally agreed-upon interpretations or principles. That's why we have a Supreme Court, and if the decisions from their last session were any indicator, they have some doctrinal disputes. The idea that states could reject laws they didn't like, or nullification, was once a Constitutional doctrine which some leading politicians, especially in the South, supported. Furthermore, the non-delegation doctrine really had its heyday prior to Progressivism, the New Deal, and the development of the administrative state. The FDA, making new rules? Delegation! The FCC, making new rules outlawing Janet Jackson's boob? Delegation! OSHA? Delegation! The FEC? Delegation!
Will quotes the Supreme Court, That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."

If Will were my student, I'd fail him- he doesn't cite at all. That quotation is from Field v. Clark, a ruling from 1892. Non-delegation had its day in the sun in Schechter Poulty Corp. v. US, in 1935, invalidating a key piece of New Deal legislation and incurring the wrath of FDR. This case is mostly famous for prompting a sea change in Supreme Court interpretation of both non-delegation and the commerce clause, two developments necessary for the emergence of the modern administrative state.

The Supreme Court will be the ultimate arbiters of this question (if the bill is challenged in Court, as New Deal legislation routinely was). It is far from obvious what they might say. Contemporary decisions do take the separation of powers seriously, as evidenced in the Court's rejection of the "legislative veto" (1983), and the line-item veto (1998). But this Court also seems generally respectful of precedent. Adopting a pre-New Deal approach to executive branch regulation would be out of step with that.

Nineteenth century approaches to the federal government were vastly different, and Will would be well-served to consult Supreme Court decisions that reflect contemporary standards. It's not as if the Court lacks for verbosity in explaining its decisions.

Let's hope next week he's not quoting Roger Taney...