The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The world can be divided into two kinds of people: those who like the nondelegation doctrine and want to revive it, and those who think that's a terrible idea.
A reminder: The nondelegation doctrine holds that Congress cannot "delegate" its legislative power to the executive branch (or to anyone else). On its face, that's a pretty vague idea, which many people specify by insisting that Congress cannot grant open-ended discretion to the president or to administrative agencies.
On that view, the Constitution forbids Congress from authorizing the Environmental Protection Agency to "issue whatever regulations it likes to clean the air." The problem is that such an authorization would grant legislative power to the EPA, in violation of Article 1, section 1, of the Constitution. Over the years, the Supreme Court has continued to agree that Congress must discipline the executive branch with an "intelligible principle"—but it has not invalidated an act of Congress on nondelegation grounds in many decades, and it shows no sign of wanting to do so.
Many people, especially on the right, think that that is a terrible mistake—a plain violation of the constitutional settlement. They want the court to scrutinize legislation to see whether it is really an abdication of the legislative authority.
A modest rejoinder is that if you read statutes in context, they really do set out intelligible principles, and so the court has been altogether right to refuse to invoke the nondelegation doctrine. A less modest rejoinder, powerfully argued by Adrian Vermeule and Eric Posner, is that the whole doctrine should be interred.
Their argument is partly historical: In their view, the original Constitution did not require an intelligible principle and did not forbid Congress from granting open-ended discretion. Sure, Congress cannot "delegate legislative power." But that means only that Congress cannot go out of business, or give genuinely legislative power to someone else. When Congress tells the executive to "issue good regulations," it is exercising, not abdicating, legislative power—and that's all the Constitution requires.
Vermeule and Posner also insist that there's no good argument, in principle, for forbidding open-ended grants of authority. If Congress decides in favor of such a grant, it's accountable for that—just as it's accountable if it does nothing at all, or enacts a law with great specificity. To simplify their subtle and detailed argument: If we care about democratic self-government, we should accept, rather than abhor, grants of discretionary authority, so long as they reflect democratic self-government in action—as they often do.
To come to terms with this argument—about history and principle—we cannot rely on the "Star Wars" saga (sad but true). But the movies take a firm stand against Vermeule and Posner. An observation at a key moment in Emperor Palpatine's rise to power in Revenge of the Sith: "The Senate has surrendered so much power; it's hard to see where his authority stops." In "A New Hope," General Tarkin reports, "The Imperial Senate will no longer be of any concern to us, gentlemen. I have just received word that the Emperor has permanently dissolved that misguided body."
There's a history here. When drafting the prequels, George Lucas began researching the transition from democracies to dictatorships. He noted: "You sort of see these recurring themes where a democracy turns itself into a dictatorship, and it always seems to happen kind of in the same way, with the same kinds of issues, and threats from the outside, needing more control. A democratic body, a senate, not being able to function properly because everybody's squabbling, there's corruption."
Hitler was apparently a model for Palpatine, and in Germany, his own rise was confirmed by his successful claim to general authority to make law, free from any requirement of legislative authorization. In the midst of an apparent crisis, signaled by a fire at the Reichstag (legislative) building, Hitler demanded and received that authority. On March 24, 1933, he was given plenary powers by an Enabling Act—"temporarily." Not long after, the legislature's abdication became complete (and explicit).
In (the underrated!) Attack of the Clones, Mas Amedda says: "The Senate must vote to give the Chancellor emergency powers." Accepting those powers, Palpatine insists, "It is with great reluctance that I have agreed to this calling. I love democracy. I love the Republic. Once this crisis has abated, I will lay down the powers you have given me!" Yeah right.
It would be absurd to say that arguments about the separation of powers can be defeated by reference to Hitler, or even to "Star Wars." And in my view, a revival of the doctrine would be a mistake, largely for the standard reasons. But it's worth thinking seriously—perhaps more seriously than we have been—about the risks, to democracy and liberty alike, that arise when a legislature grants the executive the general authority to do whatever it thinks best.
A concluding word of thanks to Eugene Volokh, Master of the Jedi Council, for hosting me this week—and also to the terrific readers of this blog.