Delegation as Executive Aggrandizement

From The National Review’s The Corner blog:

A bipartisan effort to halt the EPA from regulating greenhouse gases just failed in the Senate. I don’t want to hear a liberal bemoan executive supremacy ever again. This is Congress abdicating its own authority because the Democrats know they can’t get the votes to pass cap-and-trade.

Huh. That has the superficial ring of validity to it, doesn’t it? After all, it uses the right vocabulary. But no. Even if delegation does work a worrisome aggrandizement of the executive branch, first, this case doesn’t present the harm, because the Murkowski Amendment would’ve curtailed the EPA’s lawfully delegated authority, see Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007); and second, delegation can pose a separation of powers problem, but not the kind of separation of powers crisis to which President Bush nearly forced us. His problem was taking power not given to him, or simply cutting Congress out of the lawmaking loop — the axiomatic violation of the classical Locke/Montesquieu separation theory (“negative” separation of powers). The President has some substantive lawmaking authority, but whatever it is, it is not the plenary authority that Bush asserted. When, as here, Congress hands the contested power to the President on a platter, everything’s rosy. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Well, most of the time. Congress can overdelegate, presenting an issue in “functional” separation theory — i.e., where a policy organ shirks the responsibilities for which it was designed. There’s even a good argument that Congress has done just that, systematically. When The Corner reads enough modern separation theory to make that argument, we’ll come back to it. In the meantime, confusing functional and negative separation of powers issues? Awww.



  1. So, I Congress now trying to have a “Do-over” even though they’ve managed to eviscerate the EPA for over a decade? Really?

    1. Seems that way. Better late than never though — unless the delay means they’re functionally equivalent.

  2. from inside that’s exactly what it means.

  3. Just for clarification, what’s the difference between a functional and a negative separation issue?

    1. Ah! Sorry. I should’ve made that clear. SO, negative separation is concerned with one branch of government acquiring the powers of the others — the executive nationalizing a steel mill, say. Functional separation is concerned with each branch doing what it’s best at. So the legislature delegating lawmaking power to the executive is “sort of” a negative separation issue — but not really, since it’s a consensual grant — but it’s really a functional issue, in that the legislature is failing to do what it was designed to do. In brief, negative separation is concerned with a branch wrongfully getting too big; functional with a branch wrongfully making itself too small.

      1. Okay, that makes sense. Cheers.

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