The Question of Lawmaking II

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Subtitle: Outsourcing the Law.

Imagine turning off the news media. Imagine not just turning it off but isolating yourself from it for a month. A fishing and hunting trip without any electronic devices would do the trick. Upon your return, you find out that congress had charged, tried, and found guilty all the higher echelon Obama administration officials who abused their offices to overthrow candidate and President Trump. You are told that because the executive and judicial branches wouldn’t do their jobs, congress decided to step in and punish Obama, Rice, Lynch, Comey, McCabe, Strzok, Priestap and Page.

Of course, while you admire the outcome of visiting punishment on these high criminals, you are outraged at the usurpation of the law of the land, our beloved Constitution. We the People did not grant law enforcement powers to congress and purposely denied it the power to attaint and punish anyone, no matter their crimes. Tyranny, said James Madison, is nothing more than comingling the three great functions of any government in the hands of the one, the few or the many.

Instead of vacationing for a month and finding that congress had conducted felony trials, imagine doing a Rip Van Winkle for the entire 20th century. Awakening, you find that congress had assigned much of its Article I § 1 lawmaking powers to the executive and judicial branches. Article I § 1 is the essence of the America republic. Here, the component members of the nation gather in a meeting, a congress of representatives of the people and states to craft the law of the land. Extra-congressional lawmaking is a pox on our sovereignty; if allowed to fester and grow it is the certain end of free government. It is the tyranny that President Trump promised to stop and turn back, the administrative state’s unconstitutional practice to make, enforce and adjudicate the law.

I date the birth of the administrative state, aka the fourth branch, to the 1887 Interstate Commerce Commission, which congress authorized to regulate railroads (and later trucking), ensure fair rates, eliminate rate discrimination, and to eventually regulate other aspects of common carriers, including interstate bus lines and telephone companies. If this is the sort of Article I § 8 power “to regulate commerce” that our Framers envisioned, it was to be done by congress, and not by an outside commission within the executive branch.

The fourth branch got a big boost in 1928 when scotus constitutionalized the delegation of congressional lawmaking. The Supreme Court ruled in J. W. Hampton, Jr. & Co. v. United States that congressional delegation of legislative authority is an implied power of congress that is constitutional so long as congress provides an “intelligible principle” to guide the executive branch: “In determining what congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.” So long as congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to (exercise the delegated authority) is directed to conform, such legislative action is not a forbidden delegation of legislative power.”

Despite the people’s Article I § 1 grant of legislative powers to congress and congress alone, scotus determined that all was fine and constitutional as long as congress provided lawmaking guidance to the executive branch.

It gets worse. By slow degrees scotus quietly overturned portions of Marbury v. Madison, which declared that it is “emphatically the province and duty of the judicial department to say what the law is.” In a series of decisions scotus ruled that administrative agency officials—rather than judges, have the final say in the interpretation of statutes and agency rules.

A 1984 scotus decision colloquially known today as Chevron Deference instructs a court reviewing an administrative agency’s interpretation of laws to defer to the judgment of agency officials if (1) the law is not clear, and (2) the agency’s interpretation is a reasonable one. The court explained in Chevron that the “power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by congress.”

The case involved a challenge to the Environmental Protection Agency’s interpretation of “stationary sources” in the Clean Air Act. The court found that such a challenge “must fail” when it “really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by congress.”

So, scotus gave congress the means to avoid responsibility for awful laws. “As the Secretary shall direct” is the common ruse to avoid the ire of angry constituents. Congress goes far out of its way to avoid lawmaking and oversight of the agencies that it created.

At least two scotus justices, Clarence Thomas and Neil Gorsuch, realize that scotus has painted itself into a constitutional corner through Chevron Deference to administrative agencies. Thomas:

We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.


There’s ample evidence … that the framers of the Constitution thought the compartmentalization of legislative power not just a tool of good government or necessary to protect the authority of Congress from encroachment by the executive but essential to the preservation of the people’s liberty. The fact is Chevron…permits executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the Framers’ design.

Is liberty possible alongside the existing administrative state? No. But how can government operate if the executive branch cannot write rules? The answer is easy. Congress and the President must approve of every regulation. In this model, the administrative agencies do not make regulations with the force of law, they propose regulations to Congress, which in turn sends them to the President for his approval or rejection like any other bill.

Now the skeptic will say that Congress cannot possibly examine and debate the flood of regulations. Correct! This republican approach, consistent with the Constitution serves as an institutional lid on lawmaking. It forces Congress to prioritize. It keeps Congress within its traffic lane and focused on national matters rather the local, like minimum automobile fuel mileage and silly school lunch menus. It also promotes federalism which the Left despises. No longer will social justice warrior agencies abuse and harass the American people. This may be the first step toward the restoration of Article I § 8 limits on a congress that will find itself too busy to pass thousands of regulatory laws every year.

There is more good news. Justices Thomas and Gorsuch are not alone in their concerns. Not only has President Trump declared war against the fourth branch, Senator Mike Lee of Utah is quietly working behind the scenes to restore congress’ Article I powers. His efforts are the subject of next week’s squib.