Article I, Section 1 vests all legislative powers of the federal government in a bicameral Congress. As explained above, this is often read to include a principle that legislative power cannot be delegated to the other branches, to individual members of Congress, or to private actors. Despite the Supreme Court’s lack of direct enforcement and Congress’ transfer of power to administrative agencies within the Executive branch, I shall explain that the non-delegation principle has stubbornly persisted precisely because of its centrality to a republican form of government. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002). The Constitution places the lawmaking powers of the government in a representative legislature. Following John Locke, the Framers recognized that the most legitimate form of government and the one providing the greatest security to liberty and property would vest the lawmaking power in “collective bodies of men.” John Locke, Second Treatise of Government § 94. James Madison and others frequently emphasized that lawmaking must be done by a sufficiently large group, not by an individual or “cabal.” For the Framers, lawmaking by a representative bicameral Congress would serve a number of purposes. First, laws made by the people’s representatives would have legitimacy derived from the consent of the people. Second, by requiring members of Congress to deliberate and to compromise, the difficult process of lawmaking would promote laws aimed at the general good and equally applicable to all people. Third, laws made by a collective legislature would be more likely to avoid the dangers of small factions and special interests. Collective lawmaking would not be perfect, but, along with other constitutional safeguards, would minimize the dangers of oppressive legislation. These features reinforce why “all legislative powers herein granted” are vested in Congress. The centrality of representative, legislative power suggests constitutional limits on the delegation of legislative power to the Executive, which lacks the collective multi-member representation necessary for lawmaking. The Supreme Court has consistently reinforced the principle of non-delegation, recognizing that Article I, Section 1, of the Constitution “vests ‘all legislative Powers herein granted . . . in a Congress of the United states.’ This text permits no delegation of those powers . . . ” Whitman v. American Trucking Associations, Inc. (2001). In Panama Refining Co. v. Ryan (1935), it stated “in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend.” The non-delegation principle serves as an important textual and structural limit on the federal government. Congress has limited and enumerated powers that confine the overall scope and power of the federal government to better preserve individual liberty. The non-delegation principle reinforces these limits. If widescale delegation is permissible, executive agencies have discretion to increase the reach of the federal government without going through the difficult process of bicameralism and presentment. Moreover, non-delegation reinforces separation of powers. Open-ended delegation allows lawmaking to be combined with law execution (and adjudication) in executive agencies in a manner that raises questions about political accountability, constitutional limits, and due process. Yet in practice, the non-delegation principle has been enforced largely in the breach. Since the New Deal, Congress has increasingly delegated open-ended authority to executive branch agencies. Despite consistent recognition of a principle of non-delegation, the Supreme Court has tolerated a significant transfer of power from Congress to executive agencies to make regulations. One reason for this is the difficulty of defining an unconstitutional delegation. The Executive power includes the power to interpret and to implement the law when applying it to particular circumstances; however, the Executive power does not include the power to make the law.
This essay is part of a discussion about Article I, Section 1 with William N. Eskridge, Jr.John A. Garver Professor of Jurisprudence, Yale Law School. Read the full discussion here. As Justice Black famously explained, “[T]he President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. . . . And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States.’” Youngstown Sheet & Tube Co. v. Sawyer (1952). The difficulty arises in determining when the Executive is legislating, which is impermissible, and when the Executive is implementing statutory directives. The Court has also declined direct enforcement of the non-delegation doctrine because it has analyzed non-delegation as a structural principle that should be checked by competition between Congress and the President. As Justice Scalia explained, “Congress could delegate lawmaking authority only at the expense of increasing the power of either the President or the courts. . . . Thus, the need for delegation would have to be important enough to induce Congress to aggrandize its primary competitor for political power.” Mistretta v. United States (1989) (Scalia, J., dissenting). Why would Congress delegate so much power to the President, its rival for political power? Increased political polarization and the desire to avoid responsibility for difficult choices provide some explanation. In addition, delegation may empower members of Congress to control administration by influencing administrative agencies, allowing them to enhance their individual power through collusion with agencies. See Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015). Delegation may unravel the competitive tension between Congress and the President, undermining an important structural check on legislative power. Widespread delegation to the executive has weakened Congress as an institution and made it difficult for Congress to check the Executive. The unitary Executive possesses all of the structural advantages of quick action over Congress. Once authority has been delegated, Congress has fewer mechanisms to oversee the Executive. Non-delegation remains “a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark (1892). A few justices have argued for greater enforcement of the non-delegation doctrine to provide a check on executive branch agencies exercising delegated power. For instance, Justice Thomas has written that the judiciary’s failure to enforce the nondelegation doctrine comes at the “cost [of] our Constitution and the individual liberty it protects.” Department of Transportation v. Association of American Railroads (2015) (Thomas, J., concurring in the judgment). Given the importance of non-delegation, courts should provide greater scrutiny of delegations of legislative power. Yet the non-delegation principle cannot depend solely on judicial review. Congress is vested with the legislative power. Article I, Section 1 of the Constitution provides for the essential and central role of Congress in a republican form of government, even after the rise of the modern administrative state.
by Xiaohong Wei The Constitution of the United States of America, written well over 200 years ago, has been the foundation for building one of the great nations. It is the central instrument of American government and the supreme law of the land. For more than 200 years, it has guided the evolution of U.S. governmental institutions and has provided the basis for political stability, individual freedom, economic growth and social progress. However, the birth of the Constitution is not accidental, but has complicated economic and political backgrounds. The period after the Revolutionary War was characterized by economic depression and political crisis on the grounds that the Articles of Confederation just devised a loose association among the states, and set up a central government with very limited powers. The central government could not get the dominant position in the country’s political life while the individual states could do things in their own ways. In this chaotic situation, the central government was incapable of paying its debt, of regulating foreign and domestic commerce, of maintaining a steady value of the currency, and worst of all, incapable of keeping a strong military force to protect the country’s interests from foreign violations. As time went by, the old system became more and more adverse to the development of the young nation, and political reform seemed to be inevitable. The best solution was to draw up a new constitution in place of the Articles of Confederation. The Constitution was drawn up by 55 delegates of twelve states (all but Rhode Island) to the Constitutional Convention in Philadelphia during the summer of 1787 and ratified by the states in 1788. That distinguished gathering at Philadelphia’s Independence Hall brought together nearly all of the nation’s most prominent men, including George Washington, James Madison, Alexander Hamilton and Benjamin Franklin. Many were experienced in colonial and state government and others had records of service in the army and in the courts. As Thomas Jefferson wrote John Adams when he heard who had been appointed: “It is really an assembly of demigods.” Despite the consensus among the framers on the objectives of the Constitution, the controversy over the means by which those objectives could be achieved was lively. However, most of the issues were settled by the framers’ efforts and compromises, thus the finished Constitution has been referred to as a “bundle of compromises”. It was only through give-and-take that a successful conclusion was achieved. Such efforts and compromises in the Constitutional Convention of 1787 produced the most enduring written Constitution ever created by humankinds. The men who were at Philadelphia that hot summer hammered out a document defining distinct powers for the Congress of the United States, the president, and the federal courts. This division of authority is known as a system of checks and balances, and it ensures that none of the branches of government can dominate the others. The Constitution also establishes and limits the authority of the Federal Government over the states and emphasizes that power of the states will serve as a check on the power of the national government. One important principle embodied in the U.S. Constitution is separation of powers. To prevent concentration of power, the U.S. Constitution divides the central government into three branches and creates a system of checks and balances. Each of the three governmental branches, legislative, executive and judicial, “checks” the powers of the other branches to make sure that the principal powers of the government are not concentrated in the hands of any single branch. The principle of separation of powers and the system of checks and balances perform essential functions and contribute to a stable political situation in the United States. The principle of separation of powers dates back as far as Aristotle’s time. Aristotle favored a mixed government composed of monarchy, aristocracy, and democracy, seeing none as ideal, but a mix of the three useful by combining the best aspects of each. James Harrington, in his 1656 Oceana, brought these ideas up-to-date and proposed systems based on the separation of power. Many of the framers of the U.S. Constitution, such as Madison, studied history and political philosophy. They greatly appreciated the idea of separation of power on the grounds of their complex views of governmental power. Their experience with the Articles of Confederation taught them that the national government must have the power needed to achieve the purposes for which it was to be established. At the same time, they were worried about the concentration of power in one person’s hands. As John Adams wrote in his A Defense of the Constitution of Government of the United States of America (1787), “It is undoubtedly honorable in any man, who has acquired a great influence, unbounded confidence, and unlimited power, to resign it voluntarily; and odious to take advantage of such an opportunity to destroy a free government: but it would be madness in a legislator to frame his policy upon a supposition that such magnanimity would often appear. It is his business to contrive his plan in such a manner that such unlimited influence, confidence, and power, shall never be obtained by any man.” (Isaak 2004:100) Such worries compelled the framers to find a good way to establish a new government, thus separation of powers and a balanced government became a good choice. Two political theorists had great influence on the creation of the Constitution. John Locke, an important British political philosopher, had a large impact through his Second Treatise of Government (1690). Locke argued that sovereignty resides in individuals, not rulers. A political state, he theorized, emerged from a social contract among the people, who consent to government in order to preserve their lives, liberties, and property. In the words of the Declaration of Independence, which also drew heavily on Locke, governments derive “their just powers from the consent of the governed.” Locke also pioneered the idea of the separation of powers, and he separated the powers into an executive and a legislature. The French political philosopher Baron de Montesquieu, another major intellectual influence on the Constitution, further developed the concept of separation of powers in his treatise The Spirit of the Laws (1748), which was highly regarded by the framers of the U.S. Constitution. Montesquieu’s basic contention was that those entrusted with power tend to abuse it; therefore, if governmental power is fragmented, each power will operate as a check on the others. In its usual operational form, one branch of government (the legislative) is entrusted with making laws, a second (the executive) with executing them, and a third (the judiciary) with resolving disputes in accordance with the law. Based on the theory of Baron de Montesquieu and John Locke, the framers carefully spelled out the independence of the three branches of government: executive, legislative, and judicial. At the same time, however, they provided for a system in which some powers should be shared: Congress may pass laws, but the president can veto them; the president nominates certain public officials, but Congress must approve the appointments; and laws passed by Congress as well as executive actions are subject to judicial review. Thus the separation of powers is offset by what are called checks and balances. Separation of powers devised by the framers of the U.S. Constitution serves the goals: to prevent concentration of power and provide each branch with weapons to fight off encroachment by the other two branches. As James Madison argued in the Federalist Papers (No.51), “Ambition must be made to counteract ambition.” Clearly, the system of separated powers is not designed to maximize efficiency; it is designed to maximize freedom. In the Constitution of the United States, the Legislative, composed of the House and Senate, is set up in Article 1; the Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2; the Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3. Each of these branches has certain powers, and each of these powers is limited. The First Article of the U.S. Constitution says, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” These words clearly define the most important power of Congress: to legislate for the United States. At the same time, the framers granted some specific powers to Congress. Congress has the power to impeach both executive officials and judges. The Senate tries all impeachments. Besides, Congress can override a Presidential veto. Congress may also influence the composition of the judicial branch. It may establish courts inferior to the Supreme Court and set their jurisdiction. Furthermore, Congress regulates the size of the courts. Judges are appointed by the President with the advice and consent of the Senate. The compensation of executive officials and judges is determined by Congress, but Congress may not increase or diminish the compensation of a President, or diminish the compensation of a judge, during his term in office. Congress determines its own members’ emoluments as well. In short, the main powers of the Legislature include: Legislating all federal laws; establishing all lower federal courts; being able to override a Presidential veto; being able to impeach the President as well as other executive officials. Executive power is vested in the President by the U.S. Constitution in Article 2. The principal responsibility of the President is to ensure that all laws are faithfully carried out. The President is the chief executive officer of the federal government. He is the leader of the executive branch and the commander in chief of the armed forces. He has the power to make treaties with other nations, with the advice and consent of two-thirds of the Senate. The President also appoints, with Senate consent, diplomatic representatives, Supreme Court judges, and many other officials. Except impeachment, he also has the power to issue pardons and reprieves. Such pardons are not subject to confirmation by either house of Congress, or even to acceptance by the recipient. Another important power granted to the President is veto power over all bills, but Congress, as noted above, may override any veto except for a pocket veto by a two-thirds majority in each house. When the two houses of Congress cannot agree on a date for adjournment, the President may settle the dispute. Either house or both houses may be called into emergency session by the President. The judicial power—the power to decide cases and controversies—is vested in the Supreme Court and inferior court established by Congress. The following are the powers of the Judiciary: the power to try federal cases and interpret the laws of the nation in those cases; the power to declare any law or executive act unconstitutional. The power granted to the courts to determine whether legislation is consistent with the Constitution is called judicial review. The concept of judicial review is not written into the Constitution, but was envisioned by many of the framers. The Supreme Court established a precedent for judicial review in Marbury v. Madison. The precedent established the principle that a court may strike down a law it deems unconstitutional. The framers of the U.S. Constitution saw checks and balances as essential for the security of liberty under the Constitution. They believed that by balancing the powers of the three governmental branches, the efforts in human nature toward tyranny could be checked and restrained. John Adams praised the balanced government as the “most stupendous fabric of human invention.” In his A Defense of the Constitution of Government of the United States of America (1787), he wrote, “In the mixed government we contend for, the ministers, at least of the executive power, are responsible for every instance of the exercise of it; and if they dispose of a single commission by corruption, they are responsible to a house of representatives, who may, by impeachment, make them responsible before a senate, where they may be accused, tried, condemned, and punished, by independent judges.” (Isaak 2004:103-104) So the system of checks and balances was established and became an important part of the U.S. Constitution. With checks and balances, each of the three branches of government can limit the powers of the others. This way, no one branch is too powerful. Each branch “checks” the powers of the other branches to make sure that the power is balanced between them. The major checks possessed by each branch are listed below.
Xiaohong Wei is a full-time staff member at Sichuan Agricultural University, China, where she teaches English. She holds a B.A in English Language and Literature(Sichuan International Studies University, China), and a M.A degree in Foreign Linguistics and Applied Linguistics (Sichuan University, China). For more than ten years, she has been working as a teacher at Sichuan Agricultural University. Her research interests include intercultural studies, transfer theory, as well as culture teaching and learning. She has been in charge of and fulfilled 3 scientific research projects , and participated in 6 national and provincial research projects. She has published two book chapters and more than 20 articles at academic journals, especially of some renowned universities in China. Addressee: Xiaohong Wei Mailing address: Xinkang Road 46#, Yucheng District Department of Foreign Languages, Sichuan Agricultural University, Ya’an, Sichuan, China Post code: 625014 |