What’s in a name? That which we call a rose
By any other name would smell as sweet;Romeo and Juliet, William Shakespeare
What’s in a name? If you think about it, names, and words in general, are important. They are how we communicate thoughts and ideas to others. You can change how someone reacts to something by changing its name. So we if we don’t call them laws but something else, does that mean we can get around the Constitution?
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.
U.S. Constitution, Article I, Section 1, Clause 1
The very first words with legal authority in our Constitution states that all legislative powers are granted to Congress. The Preamble itself is just that, a preliminary description of what the document will do. So what are these legislative powers?
LEGISLATIVE, adjective
1. Giving or enacting laws; as a legislative body.
2. Capable of enacting laws; as legislative power.
So all powers to enact laws are vested in Congress. Not some legislative power, not most legislative power: ALL legislative power granted by the Constitution is vested in Congress. So why is this important? Because for decades Congress has been delegating its power to create “laws” to the Executive branch in the form of regulation and rule-making.
LAW, noun
1. A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions, particularly their social actions.
You see, they call it rule-making or passing regulations. But a law by any other name is just as binding, and the power to create them belongs only to the legislative branch. Those who support Congress delegating rule-making to the executive branch point to the 1928 supreme Court case J. W. Hampton, Jr., & Co. v. United States.
In a unanimous decision, the Court held that Congress, within “defined limits,” could vest discretion in Executive officers to make public regulations and direct the details of statutory execution. The Court argued that the same principle that allowed Congress to fix rates in interstate commerce also enabled it to remit to a rate-making body under the control of the Executive branch.
After reading the opinion, I found two relevant points. First, the court contradicted itself when this:
Held that the delegation of power is not unconstitutional.
Clearly the published opinion of the court is that the delegation of power is not unconstitutional. Yet reading the opinion I found this:
“The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”
So, after holding that the Constitution allows the delegation of power, the court then says that the delegation of power, as opposed to discretion within the law, cannot be done.
“The Congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations and the investigation of facts, with a view to making orders in a particular matter within the rules laid down by the Congress.
Second, as usual, it appears the devil is in the details. The court agrees that Congress cannot delegate its legislative power, but once they set the general rules, the commission or agency can apply those rules. In the case J. W. Hampton, Jr., & Co. v. United States, the question was: Could Congress allow an executive agency to vary taxes within the scope they had defined? How much discretion can Congress allow?
According to the Robert Wood Johnson Foundation initiative Changes in Health Care Financing & Organization, a representative list of “The Secretary shall…” requirements includes the requirements that the Secretary:
- Promulgate regulations defining the young adults who can now remain under their parents’ insurance policies;
- Develop standards for use by insurers in compiling and providing information for enrollees that accurately describe benefits and coverage;
- Develop reporting requirements, in consultation with quality experts, for use by insurers with respect to benefits and provider reimbursement structures that improve health outcomes, prevent readmissions, improve patient safety, and implement wellness and health promotion activities;
- Collect and make publicly available reports of insurers’ minimum loss ratios and adjust the ratios to avoid destabilization of the individual insurance market;
- Establish a process for an annual review of unreasonable increases in premiums for health insurance coverage; and
- Establish, in consultation with the states, a mechanism, including a website, through which individuals may identify affordable health insurance options within their state; and develop a standardized format for the presentation of coverage option information to individuals.
These are not working out the details within the general rules established by Congress, neither are they asking an agency to work within prescribed boundaries. This is Congress tossing their lawmaking authority over to an executive agency. They are asking the agency to promulgate regulations, develop standards, and establish processes, all with the force of law. And this is just one law. What about the thousands of other laws Congress has enacted asking the EPA, DOE, and the rest of the three letter agencies to come up with regulations they couldn’t be bothered with?
Why is this such a big deal? Because we vested lawmaking power in two groups of representatives, one of the people (the House of Representatives) and another of the states (the Senate), both of which are elected by the people of the United States of America. Bureaucrats in executive agencies do not face the voting public; they are not held directly accountable to the true sovereigns of this nation. Their roles are not even recorded and made public. In short, this is a form of legislation without representation.
Conclusion
There is logic to allowing an executive agency some discretion within the guidelines established by Congress, but like so much in government today, give them an inch and they’ll take a mile. If Congress enacted good legislation, i.e., not only constitutional, but worded with proper details and establishing clear limits within which the the executive branch can work, this would not be a problem. Whether it’s through short-sightedness or a desire to avoid their responsibility, Congress is abdicating their lawmaking responsibilities, and we should hold them accountable for not doing their jobs well.
