The Idea of Representation and the Problem of Delegation

The Idea of Representation and the Problem of Delegation

Lecture delivered at Hillsdale College Center for Teaching Excellence Conference

“The Purpose and Structure of the Constitution”
Fort Worth, Texas
November 12, 2021

The Declaration of Independence names life, liberty, and the pursuit of happiness as our unalienable rights under the laws of Nature and of nature’s God. It goes on to say that the purpose of government is to secure those rights. The problem the Framers of the United States Constitution faced, the problem we face today, the problem every person who has ever lived has faced and always will face is that the power to secure our rights is also the power to suppress them. The tyrant who has me herded into a gas chamber or shot in the back of the head in front of a mass grave cannot destroy my right to life, but he can destroy my life itself. As far as the tyrant is concerned, that’s close enough for government work, and government work entails the exercise of power for good or for bad. While your students, fortunately, are not immediately threatened with a genocidal level of oppression, all of them have experienced small acts of tyranny—getting pushed around in various ways—and some have experienced very grave acts of tyranny, sometimes in their own homes and neighborhoods. They, too understand the underlying problem the Framers confronted and feel its urgency, if not yet on the level of politics.

You can use that fact to answer the perennial questions students ask themselves, and each other: Why should I care about what the teacher is saying? In this case, why should I care about the U.S. Constitution, including such apparently dry subjects as representation, delegation of powers, and separation of powers? And why should I care about politics, which these days seems a circus of overhyped denunciation—not merely overheated but trivial, noisy, boring?

What I mean to do this morning is to show not only why American politics matters to every person who lives in this country, why the Constitution matters, but more particularly, the importance of the topics I’ve been asked to talk about: representation and delegation of powers, which are not ordinarily topics of interest on TikTok.

Start by asking your students, What do you want out of life? Then show them how the American style of politics under the Constitution helps them get it, and why losing their grasp on constitutional self-government might prevent them from getting it. If they want to cut through the rhetorical agitation they see and hear all around them, show them how not to feel about politics—every political flack, every ideologue in the country wants to jerk you around that way—but how to think about politics. Once they start thinking about politics, and especially about self-government, some may begin to think about life beyond what they want out of it. They may even decide they want more out of life than they had thought.

So, starting with the basics, what is politics and why does it matter? Every student sees the nucleus of politics in the life of the family, no matter how that family may be constituted. Aristotle may have lived 2,300 years ago, but he still gives you the common sense of the subject. We all understand that politics involves ruling; as I said a couple of minutes ago, that’s what makes it both indispensable and dangerous. Aristotle identifies three forms of ruling in the family. There is the rule of the parents or parent over the children. That is fundamentally a one-way form of rule, whereby the parents rule the children, preferably for the good of the ruled, the children. There was also, in the households of Aristotle’s time, the rule of the masters over the slaves. That too is one-way rule, but for the good of the rulers, not the ruled. Every household today still has slaves, namely, vacuum cleaners, washing machines, cell phones; most of us are pleased to see that we have no more need for human beings to be deprived of their liberty in order to get our servile work done. Finally, there is the relationship between the adults in the household, those who rule the children and the slaves. If rightly ordered, Aristotle says, that form of rule consists of ruling and being ruled, government by discussion and deliberation, give and take. If wrongly ordered, it consists of the tyranny of one partner over the other. The well-ordered marital relationship of shared rule, of ruling and being ruled in turn, is what Aristotle calls the only genuinely political form of rule.

These forms of rule, which your students already know about in both their good and their bad versions provide the basis of Aristotle’s understanding of politics in the larger community. Aristotle classifies political organizations according to their regimes.

A regime consists of four elements:

1. The rulers of the political community, its “ruling body” or politeuma.
2. The structures or institutions, the ruling officers, whereby the rulers rule—its politeia.
3. The way of life, the Bios ti, of the people who rule and are ruled.
4. The purpose, the tēlos, of the political community—in America, as we’ve seen, securing unalienable natural rights.

Given the three kinds of ruling present or potentially present in a political community, Aristotle lists six main regime types, based on both a numerical and a qualitative criterion:

 

                  GOOD              BAD

ONE           Monarchy        Tyranny

FEW           Aristocracy       Oligarchy

MANY       “Mixed”             Democracy

 

But more than this, Aristotle understands that political communities come in different sizes and feature different degrees of political centralization. Among his Greeks, he saw the small, highly centralized polis or ‘city-state,’ where even rulers in regimes of ‘the many’ could gather in one place and debate the course of political action. He also saw the huge, decentralized empires; his one-time student, Alexander the Great, would add substantially to the Macedonian empire he inherited from his father, Philip of Macedon. In subsequent centuries, others would see the large, decentralized feudal communities, the large, centralized modern states (sometimes linked in confederations), and the potentially universal empires of Church and Ummah.

With the knowledge of this way of understanding politics, of regimes and states, your students can begin to understand not only the politics of the family of their town, their state, their country, but the politics of every organization they see, starting with their school and their church, but also any business organization, social club—any group of human beings they are involved with, or are interested in understanding. That will give them a big advantage over people who don’t know much of this and I always let my students know that.

We now can see the monumental character of the problem the Framers of our Constitution set out to solve, and the indispensable human need to solve it. They needed to constitute a national government that would be structured in such a way as to prevent any of the bad regimes from arising here, to ensure that Americans could continue to govern themselves, to engage in politics strictly speaking, to rule and to be ruled in order to secure their natural rights. They also needed to constitute a modern state, one big enough to defend them against the other modern and indeed imperial states that surrounded them, a state that nonetheless remained under the control of the sovereign people, who are out to defend their natural and civil rights. Having learned this your students will be equipped to see why American politics then and American politics now were, and are, so contentious. Americans then and now have argued about what kind of regime they should have, and what kind of state they should have. In foreign policy, they confronted the imperial monarchies of Europe; today we confront oligarchies in China and Russia and Iran which mean our regime, and our state, no good, and do not lack imperial ambitions.

Two of the most important institutional devices the Framers built into the American regime and state were the ones for this hour: representation, which James Madison considers the heart of the republican regime, and separation of powers, which is implicated in the controversy over delegation of powers.

First, representation. The American Founders considered a republic to be the regime best suited for the effective defense of our rights. But ‘republic’ is a very broad term. In ancient Rome, it referred to a mixed regime, one which in practice was usually dominated by the landed oligarchs or (to be more charitable) aristocrats in the Senate. Modern Venice as it existed in the Founders’ time was called a republic, but an ‘aristocratic republic.’ The founders were out to establish a democratic republic, a regime they were careful to distinguish from both aristocracy and democracy (which, in agreement with Aristotle, they judged a bad regime). Publius defines a republic as a regime in which (1) all governing powers derive directly or indirectly from “the great body of the people” and (2) administrative or executive work is done by persons holding their offices for terms limited by an election cycle or at least during good behavior—that is, so long as they are unimpeachable. If the people are to rule themselves, their representatives must be responsible to them.

Popular self-government had a bad reputation in Publius’ day, thanks to the tumultuous histories of what Publius calls the “petty republics” of ancient Greece and Italy. “Advocates of despotism,” he writes, have used these examples to criticize not only republican regimes but “the very principles of civil liberty” itself, calling liberty “inconsistent with the order of society.” Such persons deny that what the Declaration identifies as the natural rights to life and liberty are compatible; therefore, one of these rights, liberty, must in large measure be sacrificed for the sake of security. The English philosopher Thomas Hobbes considered only a large, centralized state—the “mighty Leviathan”—with a regime of absolute monarchy as consistent with the preservation of human life.

Publius thinks otherwise. In his words “the science of politics” has improved since the days of the ancient Greeks and Romans, in five ways. Two of these don’t concern us here, this morning: legislative checks and balances within a structure of bicameralism and judges holding office “during good behavior.” Another, separation of power, will be the next speaker’s topic, although I will touch on it when I get to talking about delegation of powers.

The other two are directly relevant to republicanism. One is the representation of the people by elective or appointed officials, not just in executive offices, as it was in antiquity, but in the legislature. In the American form of republicanism, the people’s representatives make the laws. The other feature of the new science of politics flows from that. Because in a representative government the people don’t need to gather en masse to legislate for themselves, as they did in the Athenian democracy, popular self-government can extend over a much bigger territory, inhabited by a much bigger population. In other words, you can have a modern state that is strong enough to defend itself against rival states with monarchic, tyrannical, or oligarchic regimes. Because it is so large, the American republic has the chance for better domestic politics, too; faction will have a harder time organizing themselves among such a large and diverse population, spread out over a large and diverse territory—the famous argument of the tenth Federalist.

The constitutional provision that further strengthens this extended republic is Article IV, section 4 of the Constitution stipulates that every state within the national state must have a republican regime; there should be no regime rivalries among the American states, as there are in other part of the world. And the federal character of the American state will enable Americans to participate in politics and government, learn how to be citizens, because there will be plenty of self-government to do not only on the national levels, but in states, counties, and towns.

Publius defines representation in terms of the second topic I’ve been asked to discuss, delegation. Representation means “the delegation of the power of the people to a small number of citizens elected by the rest.” Furthermore, as Montesquieu writes, “It is false that one who is delegated has as much power as those who delegate and that he no longer depends on them.” (Pensées No. 224). The people retain their sovereignty; they, not the government, are the rulers. There is no privileged class ‘born to rule’; everyone is born to rule, although not everyone will participate in the government. America is therefore not a ‘mixed regime’ but an unmixed republic. Because voting citizens will want to be represented by person who are smart and ready to defend their interests, representative government will, in Publius’ words, “refine and enlarge the public views” in a way seldom seen in the “petty republics” or small democracies of ancient times or, for that matter, anywhere else in modern times, as of 1787. Because America is so large and diverse, “the idea of an actual representation of all classes of the people by persons of each class is altogether visionary,” something that “will never happen under arrangement that leaves the votes of the people free”—that is, free to choose their best representatives.

The extensiveness of the republic along with this institutional structure or design feature, representation, each indispensable to the other, are what Publius identifies as the distinctive and indeed unique features of the American regime.

Notice that crucial point about delegation of power. In a true, unmixed, democratic republic delegation runs from the sovereign people to their representatives. It does not run from the states’ governments to the federal government or from the federal government to the states’ governments. Governments are not sovereign. “We the people” are. Only the way the Framers have devised can enable us to govern ourselves under a federal system and defend our lives and liberty. Nor does delegation run from one branch of the government to any other branch. Not from the legislature to the executive, the legislature to the judiciary, or in any other pathway between any of the three branches.

Before the Founders’ time, the English philosopher John Locke put the matter with characteristic vigor: “the legislative [branch] 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. The people alone can appoint the form of the commonwealth, which is by constituting the legislative [branch], and appointing in whose hands that shall be. And when the people have said we will submit to rule, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; no can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.”

This was well understood and accepted throughout the nineteenth century and into the twentieth. In the 1825 case of Wayman v. Southard, Chief Justice John Marshall wrote, “the legislature makes, the executive executes, and the judiciary construes the law.” It is true he immediately adds, that “the maker of the law”—the legislature—may ‘commit something to the discretion of other department, and the precise boundary of this power is a subject of delicate and difficult inquiry,” but neither is that inquiry impossibly. That’s what they pay judges to do.

In this case, the question was: Do state legislature have the right to set rules and procedures for federal courts within their states—in this instance, the State of Kentucky? The question was then primarily a matter of delegation of powers under the system of federalism—that is, in framing the Judiciary Act of 1802, can Congress be said somehow to have delegated the power of regulating courts to the states? The answer, Marshall replies, is no. A court “is nothing without its process. To leave this dependent upon State legislation, would be to leave the administration of justice in the Federal Court at the mercy of the States.” Such a power “is wholly incompatible with the power of the Union in Congress assembled.” Indeed, the Constitution clearly states that “all the legislative power is vested exclusively in Congress,” and, as Baptist preachers like to say, ‘All is all that “all” can mean.’ The State assemblies do not constitute legislative bodies for the Union.

What is more, not only can Congress not delegate federal power to the states, it also cannot delegate legislative power to other branches of government. In Marshall’s words, Congress “cannot delegate legislative power to the courts, or to any other tribunals, powers which are strictly and exclusively legislative.” It can delegate powers which are not exclusively legislative, powers which all branches rightly possess. So, in this case, the federal court ordered its officer to take action against a debtor, deriving its authority from a federal law The officer can still “exercise his discretion” with regard to the procedures he follows in taking the action the court ordered, under Congressional law.

The Marshall Court’s distinction between strictly legislative, never-to-be-delegated powers enumerated in the Constitution and powers common to all branches of government, whereby they regulate their own proceedings and leave matters of action under specific circumstances to the discretion of those charged with taking those actions, prevailed in Supreme Court cases though the mid-1930s. Two of the most famous New Deal era cases were Panama Refining Company v. Ryan and A.L.A. Schechter Poultry Corporation v. United States. In the first case, a Texas oil company challenged the constitutionality of a section of the 1933 National Industrial Recovery Act, which authorized the President to prohibit the transportation of “hot oil”—that is, oil produced beyond quotas established by the state legislature for intrastate consumption which was then sold to other states or to foreign countries. The plaintiff contended that this was an unconstitutional delegation of power by Congress, the legislative branch, to the executive branch, whereby the Department of the Interior wrote the regulations and the President executed regulations set down by his own executive branch of government. In Schechter, the plaintiffs challenged the constitutionality of another section of the NIRA, which established “codes of competition” for industries, in this case a code governing the live poultry industry. Chief Justice Charles Evans Hughes wrote both opinions; in interest of time, I’ll summarize his argument in Panama Refining.

“Assuming for the present purpose,” Hughes wrote, “that the Congress has the power to interdict the transportation of that excess [of petroleum] in interstate and foreign countries, the question of whether that transportation shall be prohibited by law is obviously one of legislative policy.” The problem is that the disputed clause in the NIRA. “establishes no criterion to govern the President’s course”; the Act fails “to declare in what circumstances that transportation should be forbidden.” Nor does it require the President “to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary.” This left matters “to the President without standard or rule, to be dealt with as he pleased.” Hughes cited Wayman v. Southard on the distinction between law and the mere “filling in the details” of executing the law; in the case at hand, Congress had not “sufficiently defined” the policy the law aims at, providing no “intelligible principle” of executive action. Were this clause allowed to stand, “instead of performing its lawmaking function, the Congress could at will, as to such subjects it chooses, transfer that function to the President or other offices or to an administrative body”—to what Marshall had called “another tribunal.”

Notice the phrase, “intelligible principle.” It will go on to have a checkered history. It comes from an earlier case, J.W. Hampton and Company v. United States, decided in 1928 with an opinion written by Chief Justice William Howard Taft. The plaintiff was a New York firm which imported barium oxide, a compound with numerous industrial uses. Under the Tariff Act of 1922, the President had issued a proclamation raising the rate on this product. The Court upheld the Act, ruling against the plaintiff. Taft held that the delegation of authority to the President was constitutional because Congress gave him “an intelligible principle to which the person or body authorized to fix such rates is directed to conform,” namely, that if the tariff duties fixed in the act “do not equalize the…difference in costs of production in the United State and the principal competing country,” the President shall adjust the rates accordingly. The U.S. Tariff Commission had the duty to find the facts the President would need to make that decision, a process that must include public hearings by the Commission. That is, Congress has specified in the law a means of adjusting the rates to changing circumstances, allowing a change in the details of the law by a criterion set by the law itself.

This, Taft contended, upholds the principle of Wayman v. Southard because the Constitution is violated in such instances only if Congress “gives up its legislative power and transfers it to the President, or to the judicial branch or if by law it attempts to invest itself or its members with either executive power or judicial power.” The Tariff Act did none of those things. “The Congress may not delegate its purely legislative power to a commission,” either, he added, although a commission may apply the law “to particular situations and [to] the investigation of facts.” In sum, “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.” In both this case and the two 1935 cases—the first affirming the constitutionality of a Congressional law, the others denying it—the “intelligible principle” required by the Court was a means of action specified in the law, not only a broad, general purpose.

This matters, because after Franklin Roosevelt’s landslide election to an unprecedented third term in 1936, followed by his failed attempt to ‘pack’ the Court with New Deal supporters of the administrative state a year later, the Court never again struck down a law delegating power to an administrative agency. In order to give some sort of Constitutional cover for this reversal of more than 100 years’ precedent, the Court began to redefine what an “intelligible principle” is, indeed counting broad, general purposes as constitutionally permitted bases for saying that no delegation was going on. [1] One scholar has listed half a dozen of these: the power to determine “excessive profits”; “unfair and inequitable” commodities rates; “just and reasonable” rates”; and the “public interest, convenience or necessity” respecting the regulation of broadcast licenses. Such broad grants of authority from Congress effectively permit administrative lawmaking—an unconstitutional delegation of power. In still another step, agencies established administrative law courts which adjudicate cases under the laws the agency executives make and execute—the combination of the legislative, executive, and judicial powers in one set of hands, which is what Thomas Jefferson called the definition of tyranny and what (among other things) the Declaration of Independence condemns George III for having done.

Whatever the motives of the Supreme Court justices may have been in acquiescing to the delegation of such substantial powers to what’s now called ‘the administrative state,’ it’s important to understand the rationale behind this delegation as it was advocated by its proponents. For that, the best writer I know is James M. Landis, whose book, The Administrative Process, was published three years after the Panama Refining and Schechter decisions, and only a year after a commission appointed by President Roosevelt condemned independent administrative agencies in a report calling for the reorganization of the executive branch in order to give the President firmer control over the now-sprawling federal bureaucracy. The head of that commission, Louis Brownlow—himself an ardent Progressive —denounced the independent agencies as “miniature independent governments” that “do violence to the basic theory of the American Constitution that there should be three branches in Government and only three.” The report continued, “The Congress has found no effective way of supervising” these agencies, “they cannot be controlled by the President, and they are answerable to the courts only in respect to the legality of their decisions.” They do indeed combine legislative, executive, and judicial powers, leaving the President “with responsibility” for their decisions in the eyes of the public but inadequate power over them and hence no little real responsibility at all. “Power without responsibility has no place in a government based on the theory of democratic control, for responsibility is the people’s only weapon their only insurance against the abuse of power.” Moreover, when “the same men are obliged to serve both as prosecutors and as judges,” this “undermines judicial fairness” and “public confidence in that fairness.” The Commission called for a consolidation of administrative power under the President—music to FDR’s ears.

Landis entered the lists against both the Hughes Court and the Brownlee Commission—in effect against President Roosevelt and his adversaries on the judicial bench. In this battle, the administrative state found a sincere and enthusiastic champion. Years later, in a 1961 speech before the American Bar Association, Landis said: “For me, to have watched the growth of the administrative process has been perhaps the most rewarding chapter of my life.” There was something about modern bureaucracy that stirred the man’s blood. It wasn’t so much the structure of bureaucracy but the administrative process, and his role in originating it in America, which galvanized him. Landis understands administration not as a mere instrument of government or of regulation but as a dynamic force, the ‘cutting edge of History.’ In his own way, James M. Landis too could claim to be an American Founder. 

In Landis’s account, modern administration originated neither in American nor in English law but in the French droit administratif. The administrative process took hold in the United States due to the “inadequacy of a simple tripartite form of government to deal with modern problems.” In the U.S. the constitutional separation of the three governmental powers has been “elevated to the constitutional level and embroidered by pontifical phrases,” while criticism of the administrative process “abounds with fulmination.” But with the rise of powerful and complex modern industrial corporations simultaneously with the democratic sentiment of humanitarianism, the people have increasingly demanded that their government protect and care for them. Since in organizing themselves the corporations do not separate their powers but concentrate them in a board of directors, government needs to organize itself to imitate these rivals for power, continuing to exercise its policing powers but adding to them the powers of planning and publicity—taken together, “management.”

To the critics’ complaint that this managerial revolution entails the combination of legislative, executive, and judicial authority, Landis cheerfully agrees, saying that that’s a good thing, too. To those who charge that there are too many administrative agencies, on the contrary, “efficiency in the processes of governmental regulation is best served by the creation of more rather than less [sic] agencies.” Although he doesn’t use the term, what is needed is a new form of aristocracy, one based not on military valor or political prudence, much less on gentility and bloodlines, but on empirical knowledge, on expertise. The administrative process will be conducted by what he calls “a select, compact group of individuals”—later advocates would call it a ‘meritocracy’— trained in the social sciences who possess sufficient technical knowledge of political, social, and economic forces to manage the new, corporatist economy.

Judges lack that expertise. Their so-called “legal principles” have no reality outside of the “economic and social opinions” of the time in which those principles are formulated. All ideas are “historically molded,” having nothing to do with such fictions as the law of Nature and of Nature’s God. Judges “suffer from that finely spun logomachy”—battles of mere words—heard in courtrooms. They fail to get their minds around the facts discovered by empirical social science, the real drivers of ‘History.’ As for legislators who operate “by the democratic method,” the elected representatives Madison praised, their work is sloppy and compromised. They should indeed delegate their powers, in “the very broadest terms,” to the experts, who can transform their vaporings into precise, coherent policy. Administrators can do this because “the comparative quiet of the conference room,” relieved of “the turmoil of a legislative chamber or committee room,” “gives some assurance against the entry of impertinent considerations” and relieves the ruling process “from the play of political and economic pressures” even as it guides that process by knowledge of the much larger political, social, and economic forces which push ‘History’ forward.

Landis recommends that the legislative branch take on a new role, one consisting more of reviewing administrative actions rather than of making laws. As for the judiciary, it will have a much diminished role, one that allows no more judicial review, inasmuch as the judges’ claim to expertise, while true, is a claim to the wrong kind of expertise, expertise in the manipulation of words and of abstract ideas, not expertise in empirical realities.

Landis says little about rights, whether natural or civil. He begins, cautiously, to reveal why this is so in giving a short history of administrative rule in the United States. It began not with the battle against corporations, which initially would have been a lost cause, but with immigration control. “The exclusion and expulsion of aliens” produced “the pressure of innumerable cases,” a pressure “too great for the ordinary machinery of government,” especially for the elephantine ‘due process’ of the courts. Since aliens had no rights enforceable in U.S. courts, anyway, and indeed no legal right to enter the country, there was no need for any formal court proceedings in dealing with them. “The fusion of prosecution and adjudication in a single administrative agency” made sense. That is where the administrative process cut its teeth, in America.

Thus incised, the administrative process then appeared in the newly formed Federal Trade Commission, established in 1914 to enforce the Clayton Act, one of the major antitrust laws and a key element of the Progressive movement’s agenda under President Wilson. Supreme Court Justice Louis Brandeis remarked at the time that the FTC Act establishes an administrative tribunal, using Marshall’s term for one of the several bodies Congress isn’t entitled to delegate power to. But for his part, Landis elegantly ignores the fact that this now meant citizens not aliens were now being ruled administratively. Indeed, as far as he is concerned, “political dogmas” and “righteous abstractions” such as natural and civil rights have no fit place in law. Only the administrative process can, as he puts it, lift the rule of law “to new heights, where the great judge [i.e., the administrative process itself], like the conductor of a many-tongued symphony, from which would otherwise be discord, makes know the voice of many instruments, the vision that has been given him of man’s destiny upon this earth.” The concrete, empirical, scientific, historical process of administration stands, “in essence, [as] our generation’s answer to the inadequacy of the judicial and legislative process,” which liberated our great-grandfathers but now shackles us. By supplementing these now incompetent older processes undertaken by now incompetent judges, legislators, and executives, who are now rightly and progressively delegating their powers to the administrators whose expertise gives them the authority to push society forward on ‘History’s’ cutting edge, Americans redeem the true content of separation and balance of governmental power, realizing the promised harmony of American life. [2]

Almost exactly a century earlier, Alexis de Tocqueville took a different view. Considering the prospect of exactly the combination of social equality or “democracy” and centralized administrative states that Landis would come to champion, he warned his readers of what Landis would name the administrative process:

“The kind of oppression with which democratic peoples are threatened will resemble nothing that has preceded it in the world; our contemporaries would not find its image in their memories”—memories that still included the French Revolution and the Napoleonic Empire. “The thing is new, therefore I must try to define it, since I cannot name it. 

“I see an innumerable crowd of like and equal men who revolve on themselves without repose, procuring the small and vulgar pleasures with which they fill their souls. Each of them withdrawn and apart, is like a stranger to the destiny of all the others: his children and his particular friends form the whole of the human species for him; as for dwelling with his fellow citizens he is beside them, but he does not see them; he touches them and does not feel them; he exists only in himself and for himself alone, and if a family still remains for him, one can at least say that he no longer has a native country.

“Above these an immense tutelary power is elevated, which alone takes charge of assuring their enjoyments and watching over their fate. It is absolute, detailed, far-seeing, and mild. It would resemble paternal power if, like that, it had for its object to prepare men for manhood; but on the contrary, it seeks only to keep them irrevocably fixed in childhood; it likes citizens to enjoy themselves provided that they think only of enjoying themselves. It willingly works for their happiness; but it wants to be the unique agent and sole arbiter of that; it provides for their security, foresees and secures their needs, facilitates their pleasures, conducts their principal affairs, directs their industry, regulates their estates, divides their inheritances; can it not take away from them entirely the trouble of thinking and the pain of living?

“So it is that every day it renders the employment of free will less useful and more rare; it confines the action of the will in a smaller space and little by little steals the very use of it from each citizens. Equality has prepared men for all these things: it has disposed men to tolerate them and often even to regard them as a benefit.

“Thus, by taking each individual by turns by its powerful hands and kneading him as it likes, the sovereign extends its arms over society as a whole; it covers its surface with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd; it does not break wills, but it softens them, bends them and directs them; it rarely forces one to act, but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.

“I have always believed that this sort of regulated, mild, and peaceful servitude whose picture I have just painted, could be combined better than one imagines with some of the external forms of freedom and that it would not be impossible for it to be established in the very shadow of the sovereignty of the people.”

To bring the themes of representation and delegation of powers together, you see how that delegating powers from elected and appointed officials to unelected and tenured ones drains real authority from the people, making civic engagement seem useless and thereby dissolving the spirit of self-government which enables citizens to defend the unalienable rights set down the Declaration of Independence. The “administrative process” thus becomes an undeclared testament to dependency.

And that is why representation and the delegation of power matter not only to lawyers and judges and political science professors, but to your students. That is how the design, the structure, of the ruling offices in the American regime affect the kind of representatives we elect, whether we are governed by elected representatives and persons appointed by them, what our way of life will be, and what purposes we aim at when we aim at governing ourselves. [2]

 

Notes

1. The first such case appears to be Lichter v. United States, decided in 1948 on the grounds that the relevant delegation provided the “intelligible principle” of “excessive profits.” However, this was an unusual case because it ruled on the constitutionality of the 1942 Renegotiation Act, a wartime measure intended to prevent price gouging by privately-owned contractors in the military defense industry. Writing for the majority, Justice Burton emphasized that the alternative was a government takeover of those industries along the lines of the “totalitarian model” the United States was resisting in the war. Further, the national emergency justified a much broader than usual use of state power, under Congress’s war powers. That being so, “It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of congressional policy to infinitely variable conditions constitute the essence of the program.” The subsequent question then became, does that need for flexibility and adaptation apply in peacetime? Subsequent Supreme Court rulings in effect have answered ‘yes.’
2. That Landis’s convictions have continued to prevail among many administrative officials may be seen in an October 2021 memo written by the chair of the Federal Trade Commission, Lina Khan. In her memo, Khan defines the FTC as a “body whose work shapes the distribution of power and opportunity across our economy.”
3. In 2019, some members of the Court indicated that the question of delegation of powers may be revisited. In Gundy v. United States, the plaintiff, a convicted sex offender, challenged his conviction for failing to register under the provisions of the Sex Offender Registration and Notification Act, which Congress enacted in 1994. The plaintiff had been convicted of a sex offense and had served his jail sentence before the Act went into effect, arguing that the Act gave too much regulatory discretion to the U.S. Attorney General respecting the registration of pre-Act offenders. In a 5-3 decision (the recently-appointed Justice Kavanaugh did not vote), the Court upheld the constitutionality of the Act. Writing for the majority, Justice Elena Kagan held that the SORNA satisfied the requirements of the “intelligible purpose” standard, namely, “to protect the public” against convicted sex offenders by “establishing a comprehensive national system for the registration” of such persons. “The Court has over and over upheld even very broad delegations” of power from Congress to the executive branch; ergo, “the delegation in SORNA easily passes muster. Justice Kagan went so far as to assert that “if SORNA’s delegation is unconstitutional, then most of the government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Writing for the minority, Justice James Gorsuch observed that “the Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens,” authorizing him to “‘prescribe the rules by which the duties and rights’ of citizens are determined a quintessentially legislative power.” Such administrative codes often prove mutable, depending on the policies of a given administration, and in any event vest legislative powers in the hands of unelected officials, by definition not responsible to the sovereign people. The purpose of separation of powers “is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions like those implicated by SORNA.” With respect to the registration of pre-Act offenders, no such consensus had been established, given Congress’s inability to specify a procedure for dealing with those offenders—a difficulty it evaded by passing on that piece of lawmaking to the Attorney General, who should be enforcing laws, not making them. In his opinion concurring with the majority, however, Justice Samuel Alito acknowledged that “since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards.” Since “I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years,” Alito affirmed the majority decision while inviting another more clear-cut case that would better enable the Court “to reconsider the approach we have taken for the past 84 years,” i.e., since the Panama Refining and Schechter cases.