Dude--Stick to Baseball. Or go Back to 1929. (Please?)
George Will has an op-ed today that resurrects one of the most hallowed of wingnut legal pipe dreams--the dismantling of the administrative state via the nondelegation doctrine. The upshot of his piece is that the stimulus bill is unconstitutional.
The doctrine--which has been narrowly applied in a few cases, essentially stands for the proposition that Congress makes laws, and the Executive enforces. The Congress may not insulate itself from the political consequences of its lawmaking by pawning off that responsibility to the Executive.
In many areas (the environment, banking, etc), Congress will dictate certain terms to the executive and leave it to the agency to implement the law. Like the Lochnerites in the 30s, there is a certain amount of wingnuttery that views the EPA et al as unconstitutional aberrations. And, no doubt, your average polluter would freaking love it.
But the examples that Will uses to prove his point are too stupid for words. The piece is entirely incoherent, but this hypo takes the cake:
Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says that the president shall define the statute's meaning with regulations that define and promote goodness and niceness and specify penalties for violations.
Surely this would be incompatible with the Vesting Clause.
This hypo was actually suggested by a law professor, which is surprising, as it's both practically irrelevant and pedagogically useless. To wit: if Congress did have a statute and a lawsuit was brought on the basis of the "nondelegation" doctrine, there might be an even bigger problem with goodness and niceness (such as the First Amendment). If that statute had criminal provisions (fairly inferred from the word "outlaw"), then the vagueness of the terms would get it thrown out in a matter of days.
The second problem is, of course, that Congress doesn't legislate that way except in hypotheticals orally presented by law professors to dim students (because something that dumb would never show up on an actual exam).
The third (and perhaps most important point--see dim student, supra) is that a -spending- ($$) package receives a far different analysis from a -legislative- ("thou shalt not") package. What it did was, for the most part, say "here's $$ to promote [various values and programs]. The executive has much broader discretion in this context. There could be unconstitutional particular provisions in there, but Will doesn't name ANY of them--he's claiming that the entire spending package is unconstitutional. Seriously, if a first year law student wrote this, it would be an F. (And don't even let me get started on standing). It's one of the most intellectually lazy pieces I've ever seen him write--which is saying something.
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Thanks for the points. George Wilf definitely mailed it in today - again.
One hopes there are at least a couple of conservatives, somewhere, who are looking back on the last several years and picking through what has happened, instead of charging ahead with the Obama bashing.
March 30, 2009 11:24 PM | Reply | Permalink