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?