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It is high time
Americans heard an argument that might turn a vague
national uneasiness into a vivid awareness of
something going very wrong. The argument is that the
Emergency Economic Stabilization Act of 2008 (EESA)
is unconstitutional.
By enacting it, Congress
did not in any meaningful sense make a law. Rather,
it made executive branch officials into legislators.
Congress said to the executive branch, in effect:
"Here is $700 billion. You say you will use some of
it to buy up banks' 'troubled assets.' But if you
prefer to do anything else with the money -- even,
say, subsidize automobile companies -- well,
whatever."
FreedomWorks, a
Washington-based libertarian advocacy organization,
argues that EESA violates "the nondelegation
doctrine." Although the text does not spell it out,
the Constitution's logic and structure --
particularly the separation of powers -- imply
limits on the size and kind of discretion that
Congress may confer on the executive branch.
The Vesting Clause of
Article I says, "All legislative powers herein
granted shall be vested in" Congress. All.
Therefore, none shall be vested elsewhere.
Since the New Deal
era, few laws have been invalidated on the ground
that they improperly delegated legislative powers.
And Chief Justice John Marshall did say that the
"precise boundary" of the power to "make" or the
power to "execute" the law "is a subject of delicate
and difficult inquiry." Still, surely sometimes the
judiciary must adjudicate such boundary disputes.
The Supreme Court
has said: "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." And the court has said that properly
delegated discretion must come with "an intelligible
principle" and must "clearly delineate" a policy
that limits the discretion. EESA flunks that test.
With EESA,
Congress forces the country to ponder the paradox of
sovereignty: If sovereign people freely choose to
surrender their sovereignty, is this willed
subordination really subordination?
It is. Congress
has done that. A court should hear the argument that
Congress cannot so divest itself of powers vested in
it. |