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George Will / March 29, 2009

Bailout Boundary Dispute

WASHINGTON – It is high time Americans heard an argument that might turn a vague national uneasiness into a vivid awareness of something going very wrong. The argument is that the Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional.

By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: “Here is $700 billion. You say you will use some of it to buy up banks’ ‘troubled assets.’ But if you prefer to do anything else with the money – even, say, subsidize automobile companies – well, whatever.”

FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates “the nondelegation doctrine.” Although the text does not spell it out, the Constitution’s logic and structure – particularly the separation of powers – imply limits on the size and kind of discretion that Congress may confer on the executive branch.

The Vesting Clause of Article I says, “All legislative powers herein granted shall be vested in” Congress. All. Therefore, none shall be vested elsewhere. Gary Lawson of Boston University’s School of Law suggests a thought experiment:

Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says the president shall define the statute’s meaning with regulations that define and promote goodness and niceness and specify penalties for violations.

Surely this would be incompatible with the Vesting Clause. Where would the Goodness and Niceness Act really be written? In Congress? No, in the executive branch. Lawson says that nothing in the Constitution’s enumeration of powers authorizes Congress to enact such a statute. The only power conferred on Congress by the Commerce Clause is to regulate. The Goodness and Niceness Act does not itself regulate, it just identifies a regulator.

The Constitution empowers Congress to make laws “necessary and proper” for carrying into execution federal purposes. But if gargantuan grants of discretion are necessary, are the purposes proper? Indeed, such designs should be considered presumptively improper. What, then, about the Goodness and Niceness Act, which, as Lawson says, delegates all practical decision-making power to the president? What about EESA?

Writing in The New Republic, Jeffrey Rosen of George Washington University Law School makes a prudential point: “The military-spending scandals during World War II, exposed by the Truman Committee, showed the risks for corruption and fraud when the executive branch is given a free hand to spend vast amounts of money.” But even in the unlikely event that the executive branch exercises its excessive EESA discretion efficiently, the mere exercise would nevertheless subvert the principle of separation of powers which, as Justice Louis Brandeis said, was adopted “not to promote efficiency but to preclude the exercise of arbitrary power.”

As government grows, legislative power, and with it accountability, must shrink. The nation has had 535 national legislators for almost half a century. During that time the federal government’s business – or, more precisely, its busy-ness – has probably grown at least twenty-fold. Vast grants of discretion to the executive branch by Congress, such as EESA, may be necessary – if America is going to have constant governmental hyperkinesis. If Washington is going to do the sort of things that EESA enables – erasing the distinction between public and private sectors; licensing uncircumscribed executive branch conscription of, and experimentation with, the nation’s resources.

Since the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers. And Chief Justice John Marshall did say that the “precise boundary” of the power to “make” or the power to “execute” the law “is a subject of delicate and difficult inquiry.” Still, surely sometimes the judiciary must adjudicate such boundary disputes.

The Supreme Court has said: “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.” And the court has said that properly delegated discretion must come with “an intelligible principle” and must “clearly delineate” a policy that limits the discretion. EESA flunks that test.

With EESA, Congress forces the country to ponder the paradox of sovereignty: If sovereign people freely choose to surrender their sovereignty, is this willed subordination really subordination?

It is. Congress has done that. A court should hear the argument that Congress cannot so divest itself of powers vested in it.

© 2009, Washington Post Writers Group

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