CARDOZO LAW REVIEW [Vol. 20:807 1999]

REPRESENTATION AND NONDELEGATION:
BACK TO BASICS

Marci A. Hamilton*

There are those who view the nondelegation doctrine as a dead letter.[1] Some even go so far as to celebrate its passing.[2] Methinks they doth protest too much. The nondelegation doctrine is rooted in the structure of the Constitution, which distinguishes between legislative and executive power. Lawmaking power is given to Congress and enforcement power to the President.[3] In its simplest terms, it is a rule that prohibits Congress from “forsaking its [lawmaking] duties” by handing them off to the executive branch.[4] Rather, Congress must embrace its particular responsibilities, while the Executive does the same. In Justice Kennedy’s memorable words, “[a]bdication of responsibility is not part of the constitutional design.”[5]

The language of the Constitution would seem to prescribe a bright-line doctrinal approach. For its application, all it would seem to require is a set of definitions — “lawmaking” and “enforcement” — that can be applied to each legislative or executive action, respectively, to determine constitutionality.[6] The United States Supreme Court has not held true to this bifurcation of responsibilities. Rather, avoiding its own constitutional obligation to keep the branches within the Constitution’s prescribed parameters, the Court has declined to enforce the Constitution’s rule requiring the legislature to make the laws. Indeed, its refusal to enforce with any vigor the Constitution’s demarcation of legislative and executive roles is now enshrined in the Court’s jurisprudence.[7]

The Court has intoned pragmatic reasons for its refusal to draw such a line, saying that delegation of the details is a practical necessity.[8] In fact, the Court has given Congress considerably more latitude than practical realities require. Under the Constitution’s lax rendering of Article I, Congress has had wide latitude to delegate its obligations and need only provide an “intelligible principle” to guide the executive branch’s lawmaking.[9] Having started down this path in the 1930s, the cases have slid down the proverbial slippery slope. We have reached the point where Congress regularly delegates its lawmaking responsibilities to the executive branch, whether it be to the President or to an executive agency.[10]

Courts and commentators alike, however, have bypassed the threshold questions necessary to determine whether the doctrine ought to have been diminished. The validity of the nondelegation doctrine turns on an underexamined, crucial constitutional issue — the constitutionally designated roles of the representatives in Congress and the representative in the White House, the President. While both the legislative and executive branches are representative, they are situated in the constitutional scheme quite differently. Examination of those differences recaptures why the non-delegation rule is crucial to liberty and why it deserves to be reinvigorated.

Historical developments have complicated the issues. No longer do we have in the executive branch the one-man show envisioned by the Framers. Rather, we have appended a massive administrative bureaucracy to it. The justification for applying the nondelegation doctrine to the former is not necessarily the same as that for the latter.

Some have presumed that, even if delegation to the President is a constitutional evil, delegation to the executive agencies may not be.[11] There is a meaningful constitutional difference between the President and the administrative bureaucracy. That difference calls for a more nuanced approach to explaining and justifying the nondelegation doctrine than the courts typically have applied.

This Article concludes that the nondelegation doctrine is consistent with the Constitution’s intended structure and that it serves important constitutional ends. The Supreme Court’s recent warming to its fundamental principles is a salutary development, whether applied to the President or to administrative agencies.

First, I will describe the structure of representation in the Constitution generally. I will then compare legislative representation with the Executive. In the latter case, I will dissect the difference between the President and the administrative bureaucracy. Finally, using the insights gleaned from analyzing the representative structure, I will explain the ramifications for the nondelegation doctrine and, in particular, why it deserves to be revived.

I. REPRESENTATION IN THE CONSTITUTION

The most useful measuring rod for representation under a constitution is direct democracy, or rule by the people. The United States Constitution nowhere provides for direct democracy. While the people enjoy power in the voting booth and through the press, they enjoy no direct power over lawmaking.[12] Only representatives are capable of making legislative decisions. The Framers assumed that every individual exercising power would be tempted to misuse that power either by underutilizing it or by using it overly aggressively.[13] At the same time, they expressed hope that their project of effecting a system of government would preserve liberty. This is what I have called elsewhere the Calvinist paradox of distrust and hope.[14]

Much, or even most, of what was said at the Constitutional Convention was couched in terms of distrust — distrust of the legislature, of the Executive, of the people, of power in general, of religion, of the states, of the large states, and of the small states.[15] It was a feast of distrust. Frankly, one can point to precious little in the intervening centuries that would prove their assumptions wrong.

Despite their abiding distrust, many of the Framers were optimistic that a form of government that could serve the national interest without being tyrannical might be crafted. Gouverneur Morris sketched their hope-filled mission in the following terms:

He came here as a Representative of America; he flattered himself he came here in some degree as a Representative of the whole human race; for the whole human race will be affected by the proceedings of this Convention. He wished gentlemen to extend their views beyond the present moment of time; beyond the narrow limits of place from which they derive their political origin. If he were to believe some things which he had heard, he should suppose that we were assembled to truck and bargain for our particular States. He cannot descend to think that any gentlemen are really actuated by these views. We must look forward to the effects of what we do. These alone ought to guide us.[16]

Given that they trusted nobody and no particular social institution but still believed that they might craft a government geared toward liberty, the Framers’ debates focused on finding the appropriate balance of power.[17] The right exercise of power fell between two extremes. The one holding power could exercise it ineffectually or tyrannically. Either extreme was unacceptable.[18] The Articles of Confederation illustrated the former, while King George III typified the latter.

The Framers believed that a balance of power was effected by pitting one social entity against another and by assigning different jobs to different branches. Their theory was that you could not trust either one alone but you might be able to trust both if they were working toward the common good in different and potentially conflicting ways.[19]

The Framers had come to fear the “excesses of democracy”[20] and therefore brought a jaundiced view of the people’s ability to rule to the Constitutional Convention.[21] Their distrust was not the result of idealistic devotion to a particular political paradigm. Rather, they shared with their fellow citizens the pragmatic, negative reaction to the state legislatures’ abuses of power during the post-Revolutionary era.

In response to the British monarchy, many of the states had stripped the Executive of any real power and placed all of the government’s political power in the branch closest to the people, the legislative branch.[22] Without a significant check on their exercise of power, the state legislatures had degenerated into cabals rather than deliberative lawmaking bodies.

At the Convention, James Madison summarized the states’ experience under a system dominated by the legislature:

Experience had proved a tendency in our governments to throw all power into the legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable.[23]

The state constitutions had swung the pendulum too far toward the legislature. The post-Revolutionary state constitutions had set in place governmental schemes that proved legislatures were difficult to control.[24] “The legislature will continually seek to aggrandize & perpetuate themselves; and will sieze [sic] those critical moments produced by war, invasion or convulsion for that purpose.”[25] The legislature was characterized as home to “intrigues” and “corruption & cabal.”[26] In sum, the legislature — unchecked by other institutions — was likely to become mired in petty politics and the pursuit of power at the expense of the polity.

Thus, the Framers felt obligated to construct a system that generated a better balance of power between branches than the states had achieved.[27] The legislature, as the branch closest to the people, would remain the seat of lawmaking, but the Executive would be vested with significant powers.[28] The two branches might then check each other and thus render the balance necessary to forestall tyranny.

Democracy had its golden moment immediately following the Revolution.[29] If direct democracy ever had a chance of being enshrined in the United States Constitution, that chance was lost when the post-Revolution state legislatures abused their powers and sank into a morass of politics. In the glow of the Revolution’s defiance to monarchical authority, the only justification for turning to the legislature, rather than the people themselves, was that direct democracy was impracticable.[30] Had the legislatures proved reliable, the next logical step could have been endorsement of direct democracy.

Yet, the Framers came to the Convention persuaded that direct democracy could not work. Indeed, they brought to the Convention utter disrespect for the people, whom they characterized as “blind,” uninformed, and ignorant.[31] For obvious reasons, the Federalist Papers, which were propaganda aimed at persuading the people to ratify the Constitution, did not repeat the vitriol heaped on the people at the Convention.[32] Despite the Federalist Papers’ relative silence on the point, the debates at the Convention and the Constitution’s terms strongly suggest that the Constitution rests on the presupposition that the people are not fit to rule by themselves.

Thus, the Framers assailed democracy as the ruination of the Confederation.[33] Far from being persuaded by the post-Revolutionary experience that democracy was a viable political structure, they came armed with the understanding that democracy must be mediated, not only by a legislature but also by an Executive with true power.

The Constitution employs hard-learned political insights and a republican form of government to construct the representation schemes found in Congress and the President. The people have no right to instruct[34] and no right to veto their rulers’ decisions, but they are present on a daily basis through the press,[35] and they have the power to check future abuses of power each time they enter the voting booth.[36]

The legislative and executive schemes of representation share certain features. First, each branch is independent of the people. On James Madison’s terms, the independence requirement exists for the purpose of making both Congress and the President anti-majoritarian institutions, in the sense that they both bear responsibility to do what is in the nation’s interest, even if contrary to the people’s views. Thus, both branches operate as a check on popular rule for the purpose of serving the common good.[37] Second, each branch is required to report on its activities. Members of Congress are required to communicate to the people by publishing a “Journal of [Congress’s] proceedings.”[38] The President is required to report on the state of the union to Congress from time to time.[39]

The First Amendment’s Speech, Press, and Petition Clauses also institute mechanisms for an exchange of views between citizens and either branch.[40] Thus, both branches operate independently though within sight of the people, who always hold the final trump card — the vote. The roles of these two branches in the polity, however, are very different. Because of the way it is structured, each branch serves the end of balancing power in different ways.

A. The Structure of Representation in the Legislative Branch

The Congress is a well-populated and even unwieldy group of individuals. In Article I, the Constitution places many in positions of power for the purpose of representing all.[41] The legislative branch serves the people by filtering the factions in the society and distilling those laws that will best serve the nation.[42] The process of distillation is messy. Like all committees, Congress is incapable of hasty action on most issues. Rather, positions must be funneled through a large number of ports before becoming governing law.

Congress, thus, filters the multitude of interests in the society. Because of its numbers, Congress is capable of mediating a great variety of interests. As a result, it is capable of reaching more nuanced compromises on national issues. To state the matter differently, Congress’s sheer size forces representatives to engage in complicated horse-trading to reach the public good. The necessity of horse-trading slows the process, thereby preventing a rush to judgment. Thus, its size is an advantage in reaching the common good.

Its size is also a detriment. The legislature is presumed to be inherently corruptible because of the “cabals” that form and the “intrigues” that ensue.[43] Because it is a community, it can be tempted to turn its attention inward, away from the needs of the polity, toward the machinations of its own interior politics.[44] There is much to distract the member of Congress from the national good. The longer a member remains in the community, the more enmeshed he becomes.

Absorbed by the war of interests it is supposed to filter, Congress can tend to generate legislation that serves its own ends, rather than those of the country.[45] This was, precisely, the calumny that fell on the post-Revolution state legislatures unchecked by other governmental forces.[46]

B. The Structure of Representation in the Executive Branch

The executive branch was included in the Federal Constitution partly to ensure that the legislative power would be checked:

One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize & perpetuate themselves; and will sieze [sic] those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people ... against legislative tyranny ....[47]

Yet, they feared giving the Executive too much power as well.

From the beginning, the Framers viewed the executive branch as a much less populated branch than Congress. They debated how many might serve as the Executive, but they always envisioned less than a handful of men in the position.[48] While the legislature provided many outlets for the many factions in the society, the Executive was to be the representative of the Zeitgeist, the spirit of the times. A small number, presumably, would not generate cabals and intrigues but could, rather, exercise the sort of decisive leadership missing under the Articles of Confederation.[49]

The Framers presumed that the executive branch would be insufficiently populated to become consumed with the internal politics of the branch.[50] Rather, the very structure of the branch would make such a turn unlikely. The Framers’ jaundiced attitude toward the legislature did not mean that they were prepared to embrace an all-powerful Executive. The experience with a monarchy in Britain led many of the Framers to distrust the Executive on principle. Some feared that a single Executive could be transformed into a “hereditary Monarchy.”[51] In Randolph’s memorable words, a one-man Executive was “the foetus of monarchy.”[52] Butler, in turn, feared the Executive’s veto power, observing that “in all countries the Executive power is in a constant course of increase .. .. [W]hy might not a Cataline or a Cromwell arise in this Country as well as in others.”[53] Legislatures might be feared for their self-absorption and intrigue, but the President might act like a monarch — unilaterally and capriciously. Because the President could operate arbitrarily, he was a dangerous holder of power.

Much of the debate at the Convention over the Executive centered around the fear of a one-man show and the potential for tyranny latent in such a concentration of power.[54] This led the Framers to construct a new role for a national leader, one that would permit the Executive to lead but that would not elevate him above other citizens. The President was to be a unifying force but would hold only limited power. The President was to be a citizen leader subject to the law, not a divinely appointed ruler above the law. “[A]lthough the President ‘is placed [on] high,’ not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen.”[55]

This conception of the President as a figure that must have the power to rule but must be limited in the exercise of that power led the Framers to assign specific and limited duties to the President.[56] It also led to giving the President no more lawmaking power than the power to veto.[57] The President is given the duties that a single individual, with the right cabinet, can perform — that of commanding armies,[58] negotiating treaties,[59] nominating public officials,[60] and assessing the state of the union[61] — a role that was missing under the Articles of Confederation.

The representative model I began with — an independent decisionmaking authority grounded in a two-way communication process made possible by the First Amendment — describes the Executive just as it describes the legislature. In the case of the Executive, though, its duties are purposefully tailored to make it possible for the President to lead the country in a way not available to the legislative branch. Unlike the ungainly Congress, the President will be tempted to abuse his power because he can act unilaterally. Because of the President’s capacity for capricious action, there is reason to be fearful whenever the Executive takes upon itself duties not enumerated in Article II. In particular, domestic national policy determinations are not the bailiwick of this unilateral decisionmaker.[62] These decisions are better left in Congress’s tied hands.

C. The Constitutional Distinction Between the President and the Administrative Bureaucracy

In this era, the executive branch contains many more people than the President and his council of ministers. The Framers focused on the Executive as a small branch — one person with a cabinet of department heads confirmed by the Senate.[63] Today, we have administrative agencies appointed by the President. The executive branch is no one-man show. It is more populated than even the legislature and more capable of being distracted from the polity’s interest by its own internal and self-perpetuating rhythms. In effect, we have a new structure built atop the one envisioned by the Framers — the President plus an administrative bureaucracy. The President remains capable of acting unilaterally while administrative agencies diffuse executive power. The question then becomes what are the qualities of this new structure and how must it be checked.

Returning to the Framers’ calculus, the question to be asked is whether each branch is checking the others in ways that are constructive for effective government and for liberty.[64] When the executive branch generates a well-populated administrative bureaucracy, that branch becomes less capable of exercising decisive leadership and therefore loses the ability to check the legislature’s tendency to cabal. That branch is no longer capable of reflecting or interpreting the Zeitgeist of the people in the unified way a single leader can.

Bureaucrats are accountable to the people neither through the voting booth nor the reporting requirements under which the President and the Congress labor.[65] Instead of checking the legislature’s tendency to ignore the people for the sake of intrigue, the administrative bureaucracy replicates the legislature’s likely faults by multiplying itself.

The President was feared because of his capacity for unilateral action as a unitary entity. The administrative bureaucracy presents a different potential for arbitrariness: it is a decisionmaker without accountability.[66] On this account, the bureaucratic state may be real, and the republic may not have fallen, but, in the context of the structure laid out by the Framers, the administrative state is utterly wrongheaded.

In sum, the system has not eliminated the one-man show. The dangers attendant to it remain. Thus, it remains, but it is amended to a large and unwieldy administration. The question remaining in this Article is why the nondelegation doctrine would be appropriate with respect to either or both.

II. THE NONDELEGATION DOCTRINE

For different reasons, the nondelegation doctrine serves crucial constitutional ends when applied against delegations to the President and against delegation to administrative agencies.

A. Delegation to the President

When lawmaking is delegated to the President, the deliberative possibilities and the many ports of entry available through the legislature are quelled.[67] The President can take unilateral action, which is less likely to be filtered through the society’s various interests that affect the law under consideration.[68] The principle of nondelegation meets the Framers’ concern that the presidency would be the “fetus of a monarchy” by prohibiting the President from taking over decisions structurally more appropriate to the legislature.[69] It is a critical check on the Executive’s likely abuses of power forecast by the Framers.

A good example of the President overstepping his bounds by accepting delegated power that undermines the structural advantages of the Congress is the now-invalidated Line Item Veto Act[70] (“LIVA”). LIVA was enacted to redress a structural failure in the Congress: Congress could not bring itself to reduce the amount of “pork-barrel” spending it included in its appropriations bills.[71] Instead of controlling itself, it delegated the decision to prioritize national interests to the President, who, consistent with the Framers’ expectations, gladly took the proffered handover of power. He would now be the governmental entity that would choose which pork was appropriate and which was not. The Court rejected the law on the ground that it violated the Presentment Clause,[72] but it explained the constitutional violation through reliance on the most important nondelegation principle: The legislature holds primary responsibility to make the national policy choices, and the President may not take on those choices.[73] LIVA was a striking example of the way in which power can be transferred and embraced by the federal branches. Congress shrugged off its constitutional duty to reach independent policy choices by exploiting the Executive’s capacity for arbitrariness.[74]

The Court did not wish away the problem Congress has created and was careful to say that it would not pass judgment on Congress’s policy judgment that something must be done about pork-barrel spending.[75] However, the “[f]ailure of political will does not justify [an] unconstitutional remed[y].”[76] Even when Congress faces such a credible threat to its legitimacy, the Court held that some solutions, including even plainly voluntary abdications of power, can be unconstitutional.[77] The President may not unilaterally take on Congress’s responsibilities, even with Congress’s consent.

B. The Nondelegation Doctrine and Administrative Agencies

A different, though equally compelling justification for application of the nondelegation doctrine can be found when Congress delegates its lawmaking power to administrative agencies. The dangers posed by the administrative state are not only that it may act arbitrarily and capriciously, but also that such officials are less accountable to the voters.[78] The President is checked to some degree by the voting booth and public opinion, but the administrative agency suffers little deterrence from either. There is no constitutional structure that ensures deliberation or accountability, and the agencies are not constitutionally required to report their activities.

These agencies comprise a bureaucracy, which makes them less likely to take decisive action — the advantage offered by the President on certain issues. Yet, they are so removed from accountability that the branch’s size does not generate the deliberative advantages provided by the structure of the legislature. Agencies are prone to be arbitrary and unaccountable as they spin in their self-executed bureaucratic orbits. The nondelegation doctrine in this scenario is crucial to liberty, because it prohibits general lawmaking from occurring in a structure both capable of arbitrary action and removed from the national scrutiny to which both Congress and the President are exposed by the constitutional structure. From a constitutional, structural perspective, delegation to agencies is even worse than delegation to the President.[79]

The Court has addressed delegation to administrative agencies with little rigor,[80] leaving a gaping hole in the Constitution’s balanced structure of checks and balances. Indeed, one lower court thought it posed no constitutional problem while finding that delegation to the President did pose constitutional problems.[81] With the administrative state, the power that was supposed to be cabined by the people, interests, and the states through the Congress is left to expand in the unlimited universe posed by the executive agencies. The costs are high. Arbitrariness, corruption,[82] citizen apathy, dereliction of the constitutional principles of federalism, and disrespect for state sovereignty are the high constitutional costs charged for the Court’s failure to hold the line on delegation to administrative agencies.[83]

CONCLUSION

The Constitution sets into play a competing set of institutions intended to share and check national and state power. It rests on the presupposition that no entity can be trusted with too much power, because any “concentration of power in the hands of a single branch is a threat to liberty.”[84]

The plasticity of power makes it necessary to craft mechanisms to meet the inevitable abuses of power that arise despite the constitutional structure. The line item veto was one attempt, but misguided. Such mechanisms must be monitored to ensure the constitutional structure is not doubly offended by abuses of power cured by unconstitutional means. The principles underlying the nondelegation doctrine, which keep congressional, presidential, and bureaucratic power cabined and are drawn from each structure’s peculiar characteristics, are valuable weapons in the courts’ separation of powers arsenal.

The nondelegation doctrine could move the constitutional balance of power back toward the balance envisioned by the Framers by forcing legislators to make the law and by rendering it more difficult for the executive branch to enlarge its sphere of power. By threatening laws that are made by the executive branch, rather than the legislative, the nondelegation doctrine encourages the executive branch to move closer to the one-man show envisioned by the Framers. If properly functioning, the nondelegation doctrine leads to representation of factions, the people, and the Zeitgeist.

Instead of interring the doctrine, it is time to get back to basics.


* Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. The author would like to thank Hans Linde and David Schoenbrod for helpful comments on earlier drafts and Arti Tandon and Peter Yu for research assistance.

[1]See, e.g., Peter Schuck, Delegation and Democracy: Comments on David Schoenbrod, 20 CARDOZO L. REV. 775 (1999); Peter Strauss, Comments at the Cardozo Law Review symposium “The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives” (Mar. 19, 1998) (transcript on file with the Cardozo Law Review).

[2]See id.

[3]See U.S. CONST. arts. I, II.

[4] Loving v. United States, 517 U.S. 748, 758 (1996).

[5] Clinton v. City of New York, 118 S. Ct. 2091, 2109 (1998) (Kennedy, J., concurring).

[6]Cf. HANS LINDE & GEORGE BUNN, LEGISLATIVE AND ADMINISTRATIVE PROCESSES 1-7 (1976).

[7]See Mistretta v. United States, 488 U.S. 361, 372 (1989); see also Loving, 517 U.S. at 758 (stating that it had “long ago [established] that Congress must be permitted to delegate to others at least some authority that it could exercise itself”).

[8]See Mistretta, 488 U.S. at 372 (“[I]n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”).

[9]Loving, 517 U.S. at 771; Mistretta, 488 U.S. at 372; J.W. Hampton Jr., & Co. v. United States, 276 U.S. 394, 409 (1928); see Yakus v. United States, 321 U.S. 414, 424-25 (1944); United States v. Rock Royal Coop., Inc., 307 U.S. 533, 574 (1939); Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935).

[10]See generally DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993).

[11]See, e.g., Byrd v. Raines, 956 F. Supp. 25 (D.D.C. 1997), overruled on other grounds by Raines v. Byrd, 117 S. Ct. 2312 (1997).

[12]See Marci A. Hamilton, Discussion and Decisions: A Proposal to Replace the Myth of Self-Rule with an Attorneyship Model of Representation, 69 N.Y.U. L. REV. 477, 535-36 (1994) [hereinafter Hamilton, Discussion and Decisions]; Marci A. Hamilton, The People: The Least Accountable Branch, 4 U. CHI. L. SCH. ROUNDTABLE 1, 15 (1997) [hereinafter Hamilton, The People].

[13]See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 56-59 (1992) (discussing the “endlessly propulsive tendency [of power] to expand itself beyond legitimate boundaries”); Hamilton, The People, supra note 12, at 6 (“[P]ower by its very nature is propulsive.”); see also Hamilton, Discussion and Decisions, supra note 12, at 540.

[14]See Marci A. Hamilton, The Paradox of Calvinist Distrust and Hope at the Constitutional Convention, in CHRISTIAN PERSPECTIVES ON LEGAL THOUGHT (Angela Carmella et al. eds., forthcoming 1999) [hereinafter Hamilton, Paradox of Calvinist Distrust].

[15]See id. Distrust of those exercising power was not new to the Convention. It was a staple in the American mindset at least from the Revolutionary War. See generally GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 135, 141, 143 (1998).

[16] JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 240 (Adrienne Koch ed., Ohio Univ. Press 1966) (statement of Gouverneur Morris).

[17] James Madison stated that, like the check between the two branches of the national government, the general government would “controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order and harmony of the political System.” Id. at 89; see also id. at 84-85 (statement of John Dickinson); id. at 85 (statement of James Wilson); Hamilton, The People, supra note 12, at 3-4.

[18]Compare MADISON, supra note 16, at 296 (statement of James Wilson) (“The great fault of the existing confederacy is its inactivity.”), with id. at 288 (statement of Elbridge Gerry) (stating that “all men .. . abuse” the power given them).

[19] According to Montesquieu:

Political liberty is to be found only in moderate governments.... It is present only when power is not abused, but it has eternally been observed that any man who has power is led to abuse it; he continues until he finds limits. Who would think it Even virtue has need of limits. So that one cannot abuse power, power must check power by the arrangement of things.

MONTESQUIEU, THE SPIRIT OF THE LAWS, bk. XI, ch. 4, at 155 (Anne M. Cohler et al. trans., Cambridge Univ. Press 1989); id. ch. 6, at 157 (“When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty.... Nor is there liberty if the power of judging is not separated from legislative power and from executive power.”); see also WOOD, supra note 15, at 152; Hamilton, The People, supra note 12, at 5.

[20] MADISON, supra note 16, at 39 (statement of Elbridge Gerry).

[21]See Hamilton, Paradox of Calvinist Distrust, supra note 14.

[22]See WOOD, supra note 15, at 409.

[23] MADISON, supra note 16, at 312 (statement of James Madison); see also id. at 34-35 (statement of Pierce Butler) (opposing to granting Congress significant power until Randolph Plan suggested dividing power between two houses).

[24]See WOOD, supra note 15, at 403-13.

[25] MADISON, supra note 16, at 322 (statement of Gouverneur Morris); see id. at 324 (statement of Gouverneur Morris) (expressing fear that the Executive would be “the tool of a faction, of some leading demagogue in the Legislature”).

[26]Id. at 308 (statement of Gouverneur Morris); see id. (statement of James Wilson).

[27]See Hamilton, The People, supra note 12, at 4-6 (discussing principle of balance in the Constitution).

[28]See U.S. CONST. arts. I, II.

[29] The Declaration of Independence states:

Governments are instituted among Men, deriving their just Powers from the Consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

[30]See MADISON, supra note 16, at 41 (statement of Pierce Butler).

[31]Id. at 368 (statement of Elbridge Gerry).

[32]See THE FEDERALIST.

[33]See MADISON, supra note 16, at 74 (statement of James Wilson) (“Representation is made necessary only because it is impossible for the people to act collectively.”); id. at 75-77 (statement of James Madison); id. at 83-84 (statement of James Madison) (discussing the evils of direct democracy).

[34] The Constitutional Convention definitively defeated a proposal that legislators should be subject to the right to instruct. See ANNALS OF CONGRESS 757-78 (Joseph Gales ed., 1789) (recording congressional debate over the right of the people “to instruct their representatives”).

[35]See U.S. CONST. amend. I (“Congress shall make no law .. . abridging the freedom of speech, or of the press .. ..”).

[36]See MADISON, supra note 16, at 75 (statement of James Madison).

[37]See id. at 311-12 (statement of James Madison); THE FEDERALIST No. 47 (James Madison); Hamilton, The People, supra note 12, at 5-6.

[38] U.S. CONST. art. I, 5, cl. 3 (“Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such parts as may in their Judgment require Secrecy.”); id. amend. I (“Congress shall make no law .. . abridging the freedom of speech, or of the press .. ..”); see also Hamilton, Discussion and Decisions, supra note 12, at 540-41 (discussing legislative structure of representation).

[39]See U.S. CONST. art. II, 3.

[40]See id. amend. I (“Congress shall make no law .. . abridging the freedom of speech, or of the press; or the right of the people peacefully .. . to petition the Government for a redress of grievances.”); see also Hamilton, Discussion and Decisions, supra note 12, at 541-42, 555-58.

[41]See U.S. CONST. art. I.

[42]See MADISON, supra note 16, at 83-84.

[43]Id. at 308 (statement of Gouverneur Morris).

[44]See WOOD, supra note 15, at 162-73 (discussing experience of post-Revolutionary state legislatures).

[45] This is the legislative potential that public choice theorists mistakenly have concluded as the necessary nature of the legislative process — a war of interests. See Frank H. Easterbrook, The Supreme Court, 1983 Term — Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 17 (1984) (arguing that it is appropriate for courts to “treat [a] statute as a contract” where it has been enacted under influence of competing interest groups); William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875, 877 (1975) (arguing that economic legislation should be regarded as a “bargain” or a “deal” between the legislature and interest groups); id. at 879 (referring to legislation as a “‘contract’ between the enacting legislature and the group that procured the legislation”); id. at 894 (“In our view the courts do not enforce the moral law or ideals of neutrality, justice, or fairness; they enforce the ‘deals’ made by effective interest groups with earlier legislatures.”).

[46]See WOOD, supra note 15, at 403-09.

[47] MADISON, supra note 16, at 322-23 (statement of Gouverneur Morris).

[48]See id. at 45-47, 59-67.

[49]See WOOD, supra note 15, at 407.

[50]See MADISON, supra note 16, at 59-67; THE FEDERALIST No. 70 (Alexander Hamilton).

[51] MADISON, supra note 16, at 312 (statement of George Mason) (arguing against notion that the executive should be able to keep his position “during good behavior” because it would lead to life tenure and a “hereditary Monarchy”).

[52]Id. at 46 (statement of Edmund Randolph).

[53]Id. at 63 (statement of Pierce Butler).

[54]See id. at 45-47.

[55] Clinton v. Jones, 117 S. Ct. 1636, 1645 (1997) (quoting 2 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION 480 (2d ed. 1863)) (alteration in original); see also id. at 1646 n.24 (“[T]he common-law fiction that ‘[t]he king .. . is not only incapable of doing wrong, but even of thinking wrong,’ was rejected at the birth of the Republic.” (citation omitted and alteration in original)).

[56]See U.S. CONST. art. II.

[57]See id. art. I, 7, cls. 2-3.

[58]See id. art. II, 2, cl. 1.

[59]See id. cl. 2.

[60]See id.

[61]See id. 3.

[62]See Clinton v. City of New York, 118 S. Ct. 2091, 2105 (1998) (criticizing the Line Item Veto Act for failing to “qualify [the President’s] discretion to cancel or not to cancel”); id. at 2106 (criticizing the Act for giving President authority to “reject[] the policy judgment made by Congress and rely[] on his own policy judgment”); id. at 2106 n.35 (criticizing the Act for permitting the President to “reject[] .. . the policy choice made by Congress”); id. at 2106 (criticizing the Act for authorizing the President to cancel piecemeal legislation “for his own policy reasons”).

[63]See MADISON, supra note 16, at 622-24 (stating the text of Article II of the draft constitution).

[64]See Clinton, 118 S. Ct. at 2109 (Kennedy, J., concurring) (stating liberty as the goal of separation of powers doctrine).

[65]See supra text accompanying note 36.

[66]See SCHOENBROD, supra note 10.

[67]See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935); Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935).

[68]See Clinton, 118 S. Ct. at 2107 (criticizing Line Item Veto Act for “giv[ing] the President the unilateral power to change the text of duly enacted statutes”).

[69] MADISON, supra note 16, at 47 (statement of James Wilson).

[70] 2 U.S.C. 691-692 (Supp. II. 1996). The Supreme Court held LIVA unconstitutional in Clinton v. City of New York, 118 S. Ct. 2091 (1998).

[71]Pork barrel spending means federal expenditures that serve only particular local interests and which are made by federal representatives to purchase local support.

[72] U.S. CONST. art. I, 7, cl. 2.

[73]See Clinton, 118 S. Ct. at 2105-07.

[74]See Brief Amici Curiae of Marci Hamilton and David Schoenbrod in Support of the Appellees, Clinton v. City of New York, 118 S. Ct. 2091 (1998) (No. 97-1374).

[75]See Clinton, 118 S. Ct. at 2107 (“[W]e express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act.”).

[76]Id. at 2108 (Kennedy, J., concurring).

[77]See id. at 2106-07 (“The fact that Congress intended such a result is of no moment.”); id. at 2109 (Kennedy, J., concurring) (“It is no answer, of course, to say that Congress surrendered its authority by its own hand .. ..”).

[78]See David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731 (1999).

[79]See also SCHOENBROD, supra note 10, at 58-81.

[80] In its most recent delegation case, Mistretta v. United States, the Court remained committed to the nondelegation principle but left broad leeway for Congress to delegate the details of lawmaking given that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” 488 U.S. 361, 372 (1989); see also A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935) (“The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.”); Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935) (“The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested.”); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932) (upholding congressional delegation to administrative officers to proscribe food labeling regulations); Washington v. W.C. Dawson & Co., 264 U.S. 219, 227-28 (1924) (striking down federal statute permitting application of state workmen’s compensation laws within admiralty and maritime jurisdictions as unconstitutional); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164 (1920) (holding state workmen’s compensation law unconstitutional as applied to maritime employment). But see Industrial Union Dep’t, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 639 (1980) (plurality opinion) (upholding congressional delegation to the Secretary of Labor to promulgate standards to ensure safe and healthy working conditions for the Nation’s workers); Yakus v. United States, 321 U.S. 414, 426 (1944) (upholding congressional authorization of the Price Administrator to control commodity prices in time of war).

[81]See Byrd v. Raines, 956 F. Supp. 25 (D.D.C. 1997), overruled on other grounds by Raines v. Byrd, 117 S. Ct. 2312 (1997).

[82]See Independent Counsel Reauthorization Act of 1994, 28 U.S.C. 594; see also S. REP. NO. 103-101, at 6 (1994), reprinted in 1994 U.S.C.C.A.N. 748, 750 (“The profound disruption to the country and public trust [after Watergate] led Congress to conclude that the federal government needed to establish a new process for investigating and prosecuting top executive branch officials suspected of criminal conduct.”); id. at 7, reprinted in 1994 U.S.C.C.A.N. at 751 (statement of President Reagan) (“I fully endorse the goal manifested in the Independent Counsel Act of ensuring public confidence in the impartiality and integrity of criminal law investigations of high-level Executive branch officials.”); id. at 10, reprinted in 1994 U.S.C.C.A.N. at 754 (statement of Attorney General Janet Reno) (“It is my firm conviction that the law has been a good one, helping to restore public confidence in our system’s ability to investigate wrongdoing by high-level Executive Branch officials.”).

[83]See MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE (1995) (advocating rigorous judicial enforcement of separation of powers).

[84] Clinton v. City of New York, 118 S. Ct. 2091, 2109 (1998) (Kennedy, J., concurring).


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