Politics and the Principle That Elected Legislators Should Make the Laws

By Schoenbrod, David S. | Harvard Journal of Law & Public Policy, Winter 2003 | Go to article overview

Politics and the Principle That Elected Legislators Should Make the Laws


Schoenbrod, David S., Harvard Journal of Law & Public Policy


   [T]he most significant development in the law over the past
   thousand years.... is the principle that laws should be made not
   by a ruler, or his ministers, or his appointed judges, but by
   representatives of the people. (1)

   --Justice Antonin Scalia

   [T]he cabdriver asked me what's the hearing about. "[Its title is]
   'does Congress delegate too much power to agencies and what
   should be done about it.'" He said ... "why do they want to hear
   about that? They know the answer." (2)

I.   HISTORY
II.  RATIONALIZATIONS
  A. The Constitution Was Amended
     to Allow Delegation
  B. Delegation Does Not Undercut The
     Purposes Of Article I
  C. Delegation Is Not Justiciable
III. TOO BIG TO BE STRUCK
IV.  WHAT IS TO BE DONE?--FEDERALISM
     CASE LAW AS THE MODEL
V.   WHY NO BABY STEP IN AMERICAN TRUCKING?
VI.  WHY IT IS IMPORTANT TO UNDERSTAND
     THE POLITICS OF DELEGATION CASE LAW
VII. CONCLUSION

After the revolutionaries fought under the banner of "No Taxation Without Representation," the Framers adopted a Constitution that barred any new tax unless a majority of the representatives in a directly elected legislature personally took responsibility for it. (3) This Constitution required legislators to take responsibility not only for tax laws, but all other laws regulating the people, as well as all laws appropriating their money. (4) While Justices who had lived through these events were still on the Supreme Court, the Court in its first delegation case reasoned from the premise, shared by both parties, that it would be unconstitutional for Congress to delegate these legislative powers. (5) The early Congresses did not make a practice of delegating them. (6)

The principle that elected legislators should make the laws became a fundamental part of American folklore, where it remains to this day. Imagine the outrage if Congress dared enact a statute that made it a felony for an individual to commit an act that endangers public health, safety, or welfare, such acts to be listed in advance in regulations promulgated by the Attorney General. People would rightly condemn the statute on the ground that laws should come from elected lawmakers. (7)

The Supreme Court would strike this hypothetical statute under its void for vagueness doctrine. (8) That doctrine is designed not only to require notice of what the law prohibits, which this hypothetical statute does provide, but also to vindicate the principle that elected legislators should take responsibility for the law, which this statute would violate. (9)

The public would also be outraged if Congress delegated to the Internal Revenue Service the power to set income tax rates or delegated to the president carte blanche power to appropriate money. Yet, the reaction would be far different if Congress enacted a statute that makes it a felony for a person to emit pollution that endangers public health, safety or welfare, such emissions to be listed in advance in regulations promulgated by the administrator of the Environmental Protection Agency. Many of those who decry the delegations of legislative power hypothesized in the previous paragraphs would be untroubled by delegating to the EPA administrator. The New York Times editorial board opined that the Line Item Veto Act was unconstitutional because it delegated (in a limited way) the legislative power to appropriate funds, yet ridiculed the idea that that the Clean Air Act was unconstitutional because it delegated the legislative power to regulate private conduct. (10) Moreover, the Supreme Court would surely uphold the delegation to the EPA administrator. In fact, it recently upheld such a delegation in its unanimous decision in Whitman v. American Trucking Ass'n. (11)

The author of the opinion was Justice Antonin Scalia, who also wrote that "the most significant development in the law over the past thousand years.... is the principle that laws should be made not by a ruler, or his ministers, or his appointed judges, but by representatives of the people. …

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