Welcome to The Constitution: Line by Line.
My name is Mike Lee.
I'm a U.S. Senator from Utah.
Today, we're going to be talking about Article 1,
Section 1, Clause 1.
This is the very first operative provision
of the Constitution, which says that
"All legislative powers herein granted
"shall be vested in a Congress of the United States,
"which shall consist of a Senate
"and a House of Representatives."
It's important that the Constitution makes clear
here in this very first provision
that in order to make a federal law,
you have to do it through Congress.
You can't go through the executive branch
headed by the President.
You can't go through the Supreme Court,
which is the head of the judicial branch.
You have to go through Congress.
And that Congress is split up into two bodies,
two different houses: the House of Representatives,
where the states are represented according to population
and where members serve for shorter two-year terms.
And the other house, the Senate,
consists of two senators equally representing each state
chosen for terms of six years.
In the Senate, there's supposed to be a slower,
more deliberate process of making laws
intended to sort of cool the legislative process
and make sure that it doesn't move forward
too quickly, too hastily.
These are all important reasons why the Founding Fathers
envisioned a system in which you could make law
through only one branch of government.
Critically, they intended this power,
which is the most dangerous of the powers
vested in the three respective branches
of the federal government,
they put the most dangerous power in Article 1
in the power belonging to Congress.
And it's for that reason that we have to remember
that this is the branch of government
most accountable to the people
at the most regular intervals.
This was no accident.
It was no mistake.
They're giving a power that can't be delegated
to the other branches to Congress
because it's more accountable.
One of the long standing controversies
regarding this provision of the Constitution
involves whether or to what extent
Congress may delegate its lawmaking powers
to another branch of government or to some entity
standing outside of one of the three branches of government.
In the abstract, Congress may not do this.
The task of lawmaking is itself considered non-delegable.
It was for that reason that in 1935,
the Supreme Court decided the Schechter Poultry case
and invalidated the National Industrial Recovery Act,
in part because it gave discretionary power
to the executive branch of government
to regulate every aspect of commercial activity
in the United States of America.
And it did so with almost no standards
that had to be employed under law.
So this was a delegation of lawmaking power,
huge amount of discretion
to the executive branch of government.
On that basis, the Supreme Court
invalidated the statute at issue.
In a more recent case, for example,
a case called Whitman versus American Trucking,
the Supreme Court, again, reiterated the fact
that the lawmaking power is non-delegable.
And it did so even while addressing an argument
that Congress had unconstitutionally delegated
its lawmaking power under the Clean Air Act
by delegating to the EPA the power to make
and interpret and enforce rules carrying the force
of generally applicable federal law
promulgated and enforced pursuant to the Clean Air Act.
In that case, the Supreme Court of the United States,
while reiterating the fact that Congress
may not delegate its lawmaking power,
concluded that it shouldn't and wouldn't and couldn't
invalidate that act here because the standards
according to the court were sufficiently clear
as established by Congress that it wasn't appropriate
for judicial intervention.
In that case, Justice Scalia noted
that the Supreme Court was confronting a question
not just as to whether Congress had created
too much power within the executive branch,
but it was as though the Congress had created
a sort of new enterprise altogether,
a junior varsity Congress as he put it,
something that would stand
outside the three branches of government
but nonetheless exercise lawmaking power.
In his dissenting opinion in Mistretta versus United States,
Justice Scalia concluded quote,
"But while the doctrine of unconstitutional delegation
"is unquestionably a fundamental element
"of our constitutional system, it is not an element
"readily enforceable by the courts.
"Once it is conceded, as it must be, that no statute
"can be entirely precise, 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."
The net effect of these cases
is to say that on the one hand,
Congress may not delegate lawmaking power.
That belongs to Congress.
It's constitutionally assigned to Congress
because Congress is the branch of government
most accountable to the people
at the most regular intervals.
On the other hand, the court has
ever since Schechter Poultry was decided in 1935
been very, very stingy with how it wields that authority.
And it has essentially stated
that it's going to stay out of it.
As long as Congress comes up with these basic
intelligible principles that can guide the rulemaking power,
the Supreme Court tends to consider that sufficient
so as to allow the Congress to avoid having its acts
stricken down as unconstitutionally
delegating Congress' lawmaking power.
Congress has become addicted to this process
whereby it delegates rulemaking power.
It delegates to a third party,
usually an executive branch agency,
sometimes a so-called independent agency
operating outside of the normal leadership framework
within the executive branch of government
headed by the President of the United States.
And it has become addicted to it in the sense that
this process gives members of Congress
the ultimate sort of Holy Grail,
which is the opportunity to take credit
for laws that sound really nice
without having to face accountability
for laws that aren't very well considered.
I keep behind my desk in my office two stacks of documents.
One stack is usually a few inches tall.
It's usually a few hundred to a few thousand pages long.
And it consists of the laws passed by Congress
in the preceding year.
The other stack is often as high as 13 feet tall
and can be nearly 100,000 pages in length in a given year.
And it consists of the Federal Register.
The Federal Register is the annual cumulative index
of federal regulations as they're released to the public
for notice and comment, and later finalized.
Many of those documents within the Federal Register
contain legally binding provisions,
binding on the American people
no less than an Act of Congress.
But the difference is
that the small stack of documents I referred to,
the laws passed by Congress,
are made only by men and women who were elected
for that purpose and stand for reelection,
every two years in the case of representatives
and every six years in the case of senators.
By contrast, the large stack of documents,
those found in the Federal Register,
are made by men and women who while hardworking,
well-educated, well-intentioned and highly specialized,
don't work for the people.
They can't be fired because they never ever
have to stand for election.
And most of them aren't really even accountable
in any meaningful sense to anyone who is in turn elected.
This is the focus of much of the debate
surrounding Article 1, Section 1, Clause 1,
which appropriately places the lawmaking power in Congress.
When we look to the future
and we consider how best to address
Article 1, Section 1, Clause 1,
and how best to address the issue
of delegation of lawmaking power,
a lot of people look only to the courts.
Now while it's true that the courts can,
and many people believe should,
be the ones to take a look at this
and to start enforcing the non-delegation principle,
the courts are not the only answer.
There are other answers we can look to.
There are other ways of addressing
the non-delegation problem.
Another entity that we can and should look to is Congress.
Congress itself could address this.
Congress could enact legislation that in various ways
could decide that any new exercise
of executive branch rulemaking power,
especially rulemaking power of the sort that imposes
affirmative legal obligations on the American people,
may not be self-executed.
And that certain exercises of that rulemaking power
could take effect only after they had been
affirmatively enacted into law,
passed by the House and Senate,
and presented to the President of the United States
for signature or veto.
Thank you for joining us for the first episode
of The Constitution: Line by Line.
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