Last month, President Trump declared a “national emergency,” attempting to trigger federal statutes that allow him to reallocate funds appropriated by Congress for other military purposes, to fund construction of the Mexican border wall. The president’s effort to expand his power at the expense of Congress’s power is easily explained—after all our constitutional system presumes presidential ambition. But Congress’s relative passivity, when faced with the president’s encroachment upon Congress’s constitutional power of the purse, raises some difficult questions.
After all, the Framers not only expected each of our federal government’s three branches to jealously guard its prerogatives against the others’ encroachments, but they also expected Congress to be the strongest of the three. James Madison’s contributions to The Federalist exemplify these expectations. “In republican government,” Madison wrote, “the legislative authority necessarily predominates.” At its worst, Congress would be “everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” At its best, it would resist the “overgrown prerogatives of the other branches of the government.” And in all of this, Congress’s most potent tool would be its exclusive power to appropriate funds—a “power over the purse” that, history suggested to him, would be “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”
At least that was the theory. Two centuries later, Congress’s prestige and effectual power pales in comparison to the President’s, and the President’s fellow partisans in Congress seem more attached to their party than to their institution.
Seeing this, it is not unreasonable to conclude that the decline of our constitutional institutions reflects the rise of political parties. But it would be a mistake to focus exclusively on that explanation—the story of party supremacy—and thus ignore other reasons for Congress’s institutional breakdown. And, as it happens, the recent budget battle highlights another key reason for Congress’s modern breakdown: namely, the deforming effect that previous Congresses’ delegations of power to the executive branch can have on subsequent Congresses.
Congress’s broad delegations of power defy The Federalist’s premises. Our constitutional design was premised upon an understanding that (to quote Madison once again) “ambition must be made to counteract ambition,” and thus that the ambition of congressmen would be a counterweight to the President’s ambition, and vice versa. Yet Congress’s broad delegations of power to the executive branch suggest the reverse: that modern congressmen prefer to facilitate an ambitious President of their own party, not check him. Whether individual congressmen vote to delegate broad powers to the executive due to partisan loyalty, or because congressmen expect to obtain greater political benefit from overseeing the executive than from legislating in detail, the result is a Congress that is everywhere extending the sphere of the executive branch’s activity, rather than its own.
The Supreme Court has long recognized in principle the threat that overbroad delegations of power to the executive power may pose to our constitutional system, to the extent that they effectively transfer “legislative” power to the executive branch. “That Congress cannot delegate legislative power to the President,” the Court observed in 1892, “is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”
But in actual practice, this is a principle that the Court has been loath to enforce in practice: only twice has the Court struck down federal statutes for unconstitutionally “delegating” legislative power to the executive branch—and both of those cases occurred in a single year, 1935. Even conservative judges dedicated to preserving the structural Constitution hesitate to enforce the “nondelegation doctrine” in court. The doctrine does not lend itself easily to principled line-drawing by judges because the Constitution itself does not identify the point at which a broad delegation of regulatory power becomes an unconstitutional delegation of legislative power. “Once it is conceded, as it must be, that no statute can be entirely precise,” Justice Scalia observed in 1989, “and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.” In other words, Scalia’s generation of conservative originalist judges was wary of overbroad delegations of regulatory power, but it was still warier of judges imposing rules not clearly spelled out in the Constitution itself; and so, as Scalia further explained, judges have “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” (His judicial opinion echoed points he had raised years earlier, as a law professor.)
That trend may be turning, if at a glacial pace. Nearly twenty years ago, Justice Thomas called for greater judicial creativity in fashioning a standard that would limit Congress’s delegations of power. He returned to that theme a few years ago, elaborating his view that the Court should strike down more statutes for delegating overbroad powers to the executive branch. Justice Gorsuch has raised similar themes in his own opinions. Scholars such as Philip Hamburger, David Schoenbrod, and Peter Wallison have written books highlighting the delegation problem. George Will recently took it up in his syndicated column. And the program I direct at George Mason University’s Antonin Scalia Law School, recently convened a day-long academic conference on the subject where several legal scholars’ new academic papers on the Nondelegation Doctrine were discussed/presented.
Many of these critics have characterized Congress’s overbroad delegations of power as being at odds with democratic values. As John Hart Ely, one of the 20th century’s most prominent liberal legal scholars, observed in Democracy and Distrust, Congress’s delegations of power reflect “a propensity not to make politically controversial decisions—to leave them instead to others[.]” In a later book, Ely added that the growth of executive power was less a story of presidential usurpation and more a story of legislative surrender: “Congress (and the courts) ceded the ground without a fight,” and its surrender “was a self-interested one: Accountability is pretty frightening stuff.”
But even these critics of Congress have largely failed to recognize the deeper ramifications of Congress’s last century of delegating power to the executive: namely, that such delegations further undermine future Congresses’ ability to function as a legislative body. And the most recent congressional debates over the border wall exemplify this problem.
From at least early January, when the government shutdown’s political ramifications became painfully evident, members of Congress recognized that President Trump could unilaterally break the legislative stalemate by simply declaring a “national emergency” and unilaterally redirecting funds to the border wall’s construction. Senator Lindsey Graham was among the earliest and strongest advocates for the President’s assertion of emergency powers to build the wall, though other Republican Senators joined him in supporting a presidential declaration of emergency. Senate Majority Leader Mitch McConnell was initially more ambivalent, warning President Trump of the political problems that might result from an emergency declaration before eventually pledging to support the President’s action and blaming Democrats for forcing the President’s hand.
Other Republican Senators staked out more skeptical positions, ranging from outright opposition to more nebulous criticisms. But the chain of events from January to February, from the initial suggestions of an emergency declaration to the President’s actual execution of such a strategy, made clear how strong a gravitational pull the federal emergency statutes exerted over the legislative debate: because the President could invoke statutes granting him emergency powers, members of Congress had less incentive to negotiate toward a legislative solution. Thus, the President’s proponents could walk away from negotiations and let President Trump singlehandedly move the wall project forward. And, knowing that the President’s proponents had that tool at their disposal, the President’s opponents had less reason to commit themselves to a negotiated outcome. Neither side in Congress could trust the other to negotiate in good faith so long as the executive-power escape hatch—the legislative process’s “emergency” exit—was available.
The situation was perhaps best captured by Senator Thom Tillis, a critic of the President’s emergency declaration. In early January, upon the first reports of the proposal to declare an emergency, he urged that the better solution would be put “pressure on Congress to come up with a long-term solution.” That is the right metaphor: “pressure.” The availability of unilateral presidential action mitigated the hydraulic forces that might otherwise press members of Congress to compromise on a legislative solution. Regardless of how Senators ultimately vote on the emergency declaration (and how the President responds to that vote), the most important thing to keep in mind is how the very existence of those emergency powers affected Senators’ incentives in the first instance, long before the President actually declared an emergency.
While it is now commonplace for a President to say that if Congress won’t act then he will, this may actually get the causal relationship backwards: unilateral presidential action is not just the result of congressional gridlock. It is also a cause of that gridlock. President Obama liked to say, “if Congress won’t act, I will.” President Trump echoed those statements in January, discussing the possibility of unilateral action with talk show host Sean Hannity: “If we don’t make a deal with Congress, most likely I will do that . . . I can’t imagine why not.” These threats—backed with the power of open-ended statutes, passed by previous Congresses, invoked by modern Presidents—become self-fulfilling prophecies.
A similar dynamic seemed to affect Congress’s deliberations on climate-change policy a decade earlier. In 2009, President Obama called upon the Democratic-controlled House and Senate to enact climate legislation, but he and his energy advisers made clear that the Administration was prepared to pursue a climate agenda unilaterally through regulation if Congress did not enact satisfactory legislation. While the Administration averred that President Obama preferred a legislative solution, the President invested little political capital in any legislative negotiations capable of producing bipartisan consensus, focusing instead on health care legislation while his EPA formulated unilateral restrictions on greenhouse gas emissions. His Administration and its supporters may have hoped that the possibility of unilateral EPA action would spur the House and Senate to reach a legislative compromise, but the opposite inference is just as plausible: namely, that the inevitability of unilateral EPA action actually reduced the incentive for House and Senate Democrats to offer compromise legislation capable of winning Republican support. And congressional Republicans, knowing the Democrats’ incentives, had correspondingly less incentive to go out on a limb, fruitlessly offering compromises for which voters might punish them in the next Republican primary. They had no reason to trust that the legislative process could bear the fruit of legislative compromises on controversial national issues.
If this alternative view of the relationship between regulation and legislation is accurate, then it has major ramifications for the way that we think of the Nondelegation Doctrine. As Justice Scalia observed in Mistretta, conservative judges shy from invoking the Nondelegation Doctrine to strike down statutes broadly delegating regulatory power because they believe that it is better to concede the issue to the legislative process than to assert judicial power on such an indeterminate question. But if Congress’s own gridlock is itself exacerbated by the courts’ hands-off approach, then prudence may counsel in favor of judges asserting the nondelegation doctrine more energetically—at least for long enough to help bring Congress out of its cul-de-sac.
Even Scalia, ever wary of judicial enforcement of the Nondelegation Doctrine, mused once that it might not be such a bad thing if the Court struck down a statute on nondelegation grounds, if only to send a new signal to Congress: “even those who do not relish the prospect of regular judicial enforcement of the unconstitutional delegation doctrine might well support the Court’s making an example of one—just one—of the many enactments that appear to violate the principle. The educational effect on Congress might well be substantial.” By the same token, if a recalibrated Nondelegation Doctrine could spur Congress to become a better, more functional version of itself, then perhaps it could point the way to a future in which a president’s credible threat to act amid congressional inaction no longer is an everyday self-fulfilling prophecy.
Adam J. White is a Hoover Institution research fellow, and an assistant professor of law at George Mason University’s Antonin Scalia Law School, where he directs the C. Boyden Gray Center for the Study of the Administrative State.
