Just Adorable

The House Rules Committee is considering a procedural solution to passing the current healthcare bill, where they would “deem” a Senate version passed, and then send it to the President’s desk (the “Slaughter” rule). It’s more complicated than that, but just as ballsy, and just as flimsy as it sounds at first blush. Specifically, there are real concerns about whether passing a bill under this scheme would result in a valid act. There’s a way to do it, but while it plausibly cures the constitutional defect, it doesn’t make the Slaughter rule a good move. Nothing could.

So why bring it up? Well, given the chance to finally note a real constitutional defect in a Democratic plan, rather than just screeching about nullification, the far right flubbed it. From RedState:

The two bills that the House is now contemplating directly contradict each other. [. . . .] I think the constitututional principle being violated here is known as the “nondelegation doctrine.” By saying two contradictory things at the same time, the House would be delegating its power to the Senate and the White House, allowing the latter to pick which meaning they like best.

Congress could use the same approach to allow a line-item veto, by passing a thousand budgets instead of one, and letting the President pick whichever one he likes best.  And that would also violate the nondelegation doctrine.

Really? The nondelegation doctrine? You’re doing it wrong! The nondelegation doctrine is a real constitutional issue, but (1) it’s been substantially dead for about seventy years, and (2) that’s not how it works, were it to work at all. Let’s examine.

Simply put, nondelegation prevents the legislature from writing itself out of the separation of powers equation. In a constitutional democracy, the legislature will, necessarily, bear the political risk for new initiatives. Representatives thus have a real interest in punting any given issue down the field, to, say, a politically insulated administrative agency.

In fact, that’s how we run a lot of our government, and it’s fine, so long as the legislature delegates discretion to act within the bounds of an intelligible principle of Congress’ own formulation. “Regulate trade in the best interests of the American people,” for example, is not an intelligible principle; it’s a complete derogation of one of the legislature’s Article I, § 8 powers. See A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935). On the other hand, “draft sentencing guidelines for federal criminal cases, within the following bounds,” is an intelligible principle. See Mistretta v. U.S., 488 U.S. 361 (1989).

Thus, it’s literally nonsensical to talk of the House over-delegating to the Senate, or vice versa, because a delegation that does not result in transmitting power between branches of government is no delegation at all. And, to the extent that “delegation” occurs between the legislative chambers, it’s called “cooperative drafting,” or, “politics when you don’t have a filibuster.” Delegating power to the executive is the type of thing we worry about; but passing a few bills, and handing them to the President to sign one, results in the derogation of only that specific power normally surrendered in the lawmaking process. Or, put another way, it’s not an over-delegation because it supplies the ultimate intelligible principle: a full legislative framework.

As a function of the need for a fully functional administrative state, something acknowledged by both the Supreme Court and academicians, the nondelegation doctrine is also substantially dead, in that wider and wider swaths of power have been delegated away every year since 1935. The danger is both that the doctrine has weakened, and that the effects of delegation are cumulative: even if no one act will ever over-delegate, the legislature can, instead, die by a thousand progressively widening papercuts.

The one place the courts actually use the nondelegation doctrine today, as one of my professors used to say, is when they invalidate criminal statutes for “overbreadth” or “vagueness.” The theory is that a vague criminal statute doesn’t just fail to give notice to potential lawbreakers; it also gives law enforcement, a subsidiary of the executive, too much discretion. Criminalizing “obscenity,” with no further descriptor, would effectively let local police write their own law. Clever, no? God, I wish I could say I’d come up with that.

Yes, the RedState post was just an excuse to talk for a while about nondelegation. But seriously, how cool is nondelegation?


  1. “I think the constitututional principle being violated here is known as…”

    Yeah, that phrase alone really gives you confidence that the author knows what he’s talking about.

  2. But back to our story . . . what does it say about the “Leadership” of the Democratic Party (both House and Senate) that they don’t want to force their folks to go on record and reveal their hypocrisy by voting?

  3. Marlowe · ·

    This is nothing new. It has been done by both parties on both significant and insignificant legislation. Why the cries of “unconstitutional” now?

  4. ACG, doesn’t the Enrolled Bill doctrine moot the whole matter? I mean, when they announced it back in the 1800s, the SCOTUS flat-out said “even if they lie about voting on the same bill and sending it to the President for signature, we’re taking their word for it” (Specifically, Field V. Clark, 143 U.S. 649 (1892) at 672 & 673:

    It is admitted that an enrolled act thus authenticated is sufficient evidence of itself — nothing to the contrary appearing upon its face — that it passed Congress. But the contention is that it cannot be regarded as a law of the United States if the journal of either house fails to show that it passed in the precise form in which it was signed by the presiding officers of the two houses and approved by the President. It is said that under any other view, it becomes possible for the Speaker of the House of Representatives and the President of the Senate to impose upon the people as a law a bill that was never passed by Congress. But this possibility is too remote to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a coordinate branch of the government. The evils that may result from the recognition of the principle that an enrolled act in the custody of the Secretary of State, attested by the signatures of the presiding officers of the two houses of Congress and the approval of the President, is conclusive evidence that it was passed by Congress according to the forms of the Constitution would be far less than those that would certainly result from a rule making the validity of congressional enactments depend upon the manner in which the journals of the respective houses are kept by the subordinate officers charged with the duty of keeping them.


    Mind you, I’d love to see that overturned, and not just because it’s old (that just means it should be revisited, as with every ruling/doctrine more than a generation or two old) or because it’s by Harlan (the piece of crap combination of statutory derogation & adding words to the 6th Amendment that he did in Callan v. Wilson is independent of that), but because taking Congress’s word for it, like any other sort of deference, isn’t judging. It’s the opposite of judging. Judging means putting both sides of an argument to the test, interrogating both parties, and finding the truth. Not trusting someone – and especially not trusting a politician.

    Nonetheless, it is long-settled precedent. If Congress’s leadership says that Congress passed a bill, the Supreme Court precedentally-will/should agree, whether Congress actually voted in favor of passing it or not.

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