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. Some even go so far as to celebrate its
passing. 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. In its simplest terms, it is a rule that prohibits
Congress from “forsaking its [lawmaking] duties” by handing them off
to the executive branch. 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.”
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. 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
The Court has intoned pragmatic reasons for its refusal to draw such a
line, saying that delegation of the details is a practical necessity. 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.
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.
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
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. 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
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. 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. 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.
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. 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
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. The right exercise of power fell
between two extremes. The one holding power could exercise it ineffectually
or tyrannically. Either extreme was unacceptable. 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.
The Framers had come to fear the “excesses of
democracy” and therefore brought a
jaundiced view of the people’s ability to rule to the Constitutional
Convention. 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. 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.
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. “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.” The legislature was characterized as home to
“intrigues” and “corruption & cabal.” 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. The legislature, as the branch closest to the people,
would remain the seat of lawmaking, but the Executive would be vested with
significant powers. The two branches might
then check each other and thus render the balance necessary to forestall
Democracy had its golden moment immediately following the
Revolution. 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. Had the legislatures proved
reliable, the next logical step could have been endorsement of direct
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. 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. 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. 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 and no right to veto their rulers’ decisions,
but they are present on a daily basis through the press, and they have the power to check future abuses of
power each time they enter the voting booth.
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. 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.” The President is required
to report on the state of the union to Congress from time to time.
The First Amendment’s Speech, Press, and Petition Clauses also
institute mechanisms for an exchange of views between citizens and either
branch. 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
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. The legislative
branch serves the people by filtering the factions in the society and
distilling those laws that will best serve the nation. 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
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
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. 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. 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. This was, precisely, the calumny that
fell on the post-Revolution state legislatures unchecked by other governmental
B. The Structure of Representation in the Executive
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
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. 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
The Framers presumed that the executive branch would be insufficiently
populated to become consumed with the internal politics of the branch. 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.” In Randolph’s memorable words, a one-man
Executive was “the foetus of monarchy.” 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.” 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. 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
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. It also led to giving the President no more lawmaking
power than the power to veto. The President is
given the duties that a single individual, with the right cabinet, can perform
— that of commanding armies, negotiating
treaties, nominating public officials, and assessing the state of the union — a role that was missing under the Articles of
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. These decisions are better left in Congress’s
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. 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. 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. 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
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. 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. 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. 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. 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
(“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. 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, 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. 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
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. However, the “[f]ailure of political will does
not justify [an] unconstitutional remed[y].” 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. The President may not unilaterally take on
Congress’s responsibilities, even with Congress’s consent.
B. The Nondelegation Doctrine and Administrative
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.
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.
The Court has addressed delegation to administrative agencies with
little rigor, 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. 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, 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.
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
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
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.
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
See U.S. CONST. arts. I, II.
 Loving v. United States, 517 U.S. 748,
 Clinton v. City of New York, 118 S. Ct.
2091, 2109 (1998) (Kennedy, J., concurring).
LINDE & GEORGE BUNN, LEGISLATIVE AND ADMINISTRATIVE PROCESSES 1-7 (1976).
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”).
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.”).
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).
See generally DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993).
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).
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
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.
See Marci A. Hamilton, The
Paradox of Calvinist Distrust and Hope at the Constitutional Convention, in
ON LEGAL THOUGHT (Angela Carmella et al. eds., forthcoming 1999)
[hereinafter Hamilton, Paradox of Calvinist Distrust].
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).
 JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 240 (Adrienne Koch ed., Ohio Univ. Press
1966) (statement of Gouverneur Morris).
 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.
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).
 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
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.
supra note 16, at 39 (statement of Elbridge Gerry).
See Hamilton, Paradox of
Calvinist Distrust, supra note 14.
supra note 15, at 409.
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
supra note 15, at 403-13.
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
Id. at 308 (statement of
Gouverneur Morris); see id. (statement of James Wilson).
See Hamilton, The People,
supra note 12, at 4-6 (discussing principle of balance in the
See U.S. CONST. arts. I, II.
 The Declaration of Independence
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).
See MADISON, supra note 16, at 41 (statement of Pierce
Id. at 368 (statement of
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).
 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
See U.S. CONST. amend. I (“Congress shall make no law .. .
abridging the freedom of speech, or of the press .. ..”).
See MADISON, supra note 16, at 75 (statement of James
See id. at 311-12 (statement of
James Madison); THE FEDERALIST
No. 47 (James Madison); Hamilton, The People, supra note 12, at 5-6.
 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).
See U.S. CONST. art. II, § 3.
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.
See U.S. CONST. art. I.
See MADISON, supra note 16, at 83-84.
Id. at 308 (statement of
See WOOD, supra note 15,
at 162-73 (discussing experience of post-Revolutionary state legislatures).
 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.”).
supra note 15, at 403-09.
supra note 16, at 322-23 (statement of Gouverneur Morris).
See id. at 45-47, 59-67.
supra note 15, at 407.
See MADISON, supra note 16, at 59-67; THE FEDERALIST No. 70 (Alexander
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
Id. at 46 (statement of Edmund
Id. at 63 (statement of Pierce
See id. at 45-47.
 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
See U.S. CONST. art. II.
See id. art. I, § 7, cls.
See id. art. II, § 2, cl.
See id. cl. 2.
See id. § 3.
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
See MADISON, supra note 16, at 622-24 (stating the text of
Article II of the draft constitution).
See Clinton, 118 S. Ct. at 2109
(Kennedy, J., concurring) (stating liberty as the goal of separation of powers
See supra text accompanying note
See SCHOENBROD, supra note 10.
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).
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”).
supra note 16, at 47 (statement of James Wilson).
 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).
Pork barrel spending means
federal expenditures that serve only particular local interests and which are
made by federal representatives to purchase local support.
 U.S. CONST. art.
I, § 7, cl. 2.
See Clinton, 118 S. Ct. at
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).
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.”).
Id. at 2108 (Kennedy, J.,
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 .. ..”).
See David Schoenbrod,
Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731 (1999).
See also SCHOENBROD, supra note 10, at 58-81.
 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).
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).
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
See MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE (1995) (advocating
rigorous judicial enforcement of separation of powers).
 Clinton v. City of New York, 118 S. Ct.
2091, 2109 (1998) (Kennedy, J., concurring).
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