Article 1 Sect 1 – Like Parliament, But Not

Patrick Edaburn

On the surface the first clause of Article I would seem to be worthy of only minimal attention and analysis. After all it simply provides that we have a two chambered legislature, what could possibly be worth examining here?

Well, as is often the case the book is much more than the cover might suggest and it is perhaps fitting we begin our review of the Constitution here, by quite literally beginning at the beginning.

As others have pointed out, the concept of a two chambered legislature was hardly unusual, indeed the British Parliament we had just fought to be free from had just such a system and it was only natural we might choose to adopt a similar system.

But much as the son will often be greatly different than his father, our own system was greatly different than the one which helped to spawn it.

In the British system there were concepts which were specifically rejected by our founding fathers.

For example there was the idea that the power of the Parliament was broad, limited only where there were specific prohibitions.

This was reinforced by the fact that the legislature also held executive power through the election of the Prime Minister (although in theory the ministers of the Monarch, in the increasingly “constitutional monarchy” this power was held more in paper and tradition than reality).

However even as his (or her) power over the House of Commons waned, the monarch retained influence over the legislature by virtue of the almost unlimited power to appoint members to the House of Lords. While the Lords could not initiate legislation they certainly could do a great deal to block or stall such legislation.

This confusing mix of legislative and executive powers could be likened to the story of the ball of tar than ensnared Brer Rabbit and friends into an amorphous glob with no clear idea of who held what power.

Seeking to avoid the difficulties associated with this mix of powers our founding fathers chose to adopt a system of separation of powers with each branch of government holding specific powers that both empowered and restricted them and the other branches.

In the case of the legislative power the decision was made to grant it to this two chambered body which would have the exclusive right to exercise this power. This was the first step in an elaborate system of checks and balances to insure that no single part of the government could become too powerful.

Of course establishing a system is only the first step, you next need to implement it and make it work not in the theoretical world of legal and political debate but in the real world of people and places.

From the start it was clear that the then 26 Senators and 65 Congressman would not be able to personally exercise all of the powers granted to them and it may be that this was the first point where Congress came to a fork in the historical road and had to make a decision.

As far back as 1690 the philosopher John Locke wrote

“The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others”

This doctrine of non-delegation has survived over the centuries and as my fellow writers have pointed out there is considerable debate today over the Congress delegating legislative powers to other branches, in particular the executive.

However I think it could be argued that they reached this branch and chose a path in 1789.

Without meaning to get too far ahead of myself, I think we all know that one of the legislative powers granted to the Congress is the power to tax. Specifically this power is defined as the power to “lay and collect taxes” (emphasis added).

Now obviously it was not realistic for the members to personally collect those taxes (and indeed doing so would not be particularly good for a political career). So it was only logical that they delegate this power to what we would now call bureaucrats.

But when it came to passing legislation to authorize the hiring of those bureaucrats the Congress made a very interesting decision. Given that the power to collect taxes rests with the legislative branch it would seem logical for the people hired to carry out those collections to work for that branch.

But instead they chose to place them under the authority of the executive branch rather than the legislative, specifically for the Department of the Treasury.

Now certainly it is understandable and expected that the Congress would create various governmental departments that would more or less parallel the same ones found in the British system. Indeed as we will examine later the Constitution specifically provides for the President to have a Cabinet.

But was it proper for the Congress to delegate one of their powers to that Cabinet ?

I must confess to having mixed views on that question. On the one hand I certainly see a strong argument to be made that no legislative power can or should be delegated. If the Congress wants to have an agency to handle tax collections then should it not create such an agency under congressional supervision ?

On the other hand the fact that the Constitution took powers that were, in the British system, controlled by one branch (IE the Parliament both legislated and carried out executive functions) and thus it is understandable the Congress might seek to act along the same lines. Indeed it could be said that the collection of taxes is essentially an executive function.

Over the years the courts have addressed the issue of delegation of power on a number of occasions.

In 1825 the Court heard the case of Wayman v. Southard, which dealt with a law that granted the courts power to set judicial procedure. Some objected on the grounds that this was an improper delegation of power but the court upheld the law on the theory  that there was a difference between “important subjects” and mere “details”.

Chief Justice Marshall wrote that “”a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details”.

In 1892 the court heard the case of Field v. Clark the court recognized the principle of non delegation when they held that:

“That congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution”

But in that same case they ruled that the Congress was not granting the President the power to make law (in this case relating to the collection of tariffs) but instead simply made the President and his subordinates “agents” of the Congress.

This pattern continued through the era of the New Deal as the Court increasingly deferred to the Congress granting power to the President, even when that power included the ability to, in effect, promulgate regulations.

By 1989 when the court heard the matter of Mistretta v. United States, a case which focused on a law which allowed the Judicial Branch to determine sentencing guidelines for the courts, clearly a power that would fall under the powers of the Congress. The court ruled that:

“Our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”

 Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”

This statement perhaps explains the current philosophy as well as any. The court has rarely struck down a law on the theory of improper delegation of legislative power and as a result the Congress has increasingly delegated power, often granting the Executive or Judicial branches the power to promulgate regulations as long as such action is taken within “guidelines”

As I said above, I certainly understand the logic of the theory, to the degree that it is just a matter of minor details (IE letting the courts set basic internal policies). I can even see the argument that it is illogical to have two agencies, one in the executive and one in the legislative, exercising essentially the same power.

But there is such a thing as a slippery slope and it is my fear that we are increasingly rushing down that slope to a point that accountability becomes meaningless, with each branch pointing to the other and the principle of non delegation of powers becomes as dead as many other important provisions of our founding document.



Posted on January 22, 2013, in Art 1 Sect 1, Article 1, Constitution, Legislative Vesting Clause, Patrick and tagged , , . Bookmark the permalink. Leave a comment.

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