Legislative / Executive commingling


A relatively new tactic for conservative criticism of TARP and other Federal bailout funds is to argue that such legistation is unconstitutional, in that they unlawfully delegate legislative authority to the executive branch. [1][2][3] While there is good reason to fear the unrestrained accumulation of authority within the executive branch, I am not convinced that such is the case in this situation.

First and foremost, it is correct to assert that the Founding Fathers feared (rightly so) the accumulation of supreme legislative, executive, and judicial power in a single individual (or government entity); after all, this is one of the fundamental criticisms levelled at the British Crown, and other, similar contemporary regimes. This is clearly evinced by Madison’s thoughts on the matter:

The accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. [4]

In the same section, however, Madison also indicates that the Constitutional provisions regarding the separation of powers in the Federal government does not imply that there may not be any overlap between the authority of each:

[quoting Montesquieu] it may be clearly inferred, that in saying “there can be no liberty where the legislative and executive powers are united in the same person or body of magistrates,” or “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no controul [sic] over the acts of each other. His meaning, as his own words import…can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. [5]

Further, Madison goes on to state,

It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. [6]

Naturally, it is clear that the original intent of the Constitution was to ensure that the bulk of the powers assigned to each branch of the government should remain sacrosanct within the respective branches. This does not, however, imply that there would be no overlap between the authority of each branch in the exercise of their respective powers, nor should such cooperation be a source of fear for the fate of our Republic. After all, the legislative and executive branches do need to work together, if we are to have any effective governance of the nation.

The FreedomWorks report also cites a Supreme Court decision in its analysis of the legislation, but I think the report does so in a somewhat misleading manner. [7] The decision cited is the 1928 case, Hampton Co. v. United States, [8] and the report cites the maxim, Delegata potestas non potest delegari (A delegate cannot appoint another), using this as a justification for claiming that the Congress’ delegation of regulatory authority to the Executive branch is unconstitutional. Here is the statement from the court decision:

The well-known maxim ‘Delegata potestas non potest delegari,’ applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our federal and state Constitutions than it has in private law. Our Federal Constitution and state Constitutions of this country divide the governmental power into three branches. The first is the legislative, the second is the executive, and the third is the judicial, and the rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the state executive, the Governor, the executive power, and the courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the national fundamental law 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. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. [9] (Emphasis added)

Reading the passage in its full context actually indicates that the Court identifies a distinction between delegating the fundamental responsibility of one branch to another, and delegating (or borrowing) partial authority to (or from) another branch. The Court decision goes on to state,

The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. [10]

This, to me, seems especially pertinent to the case at hand. Congress did not delegate the authority to create the law itself, in that they did not “farm out” the creation of the law to the executive branch. EESA [11] was crafted by Congress (granted, though, it did have the approval of Bush II, as well as then-candidates Obama and McCain), and passed by the same; this is precisely what Congress is supposed to do. That the act specifies members of the Executive branch as the prime regulators for the subsequent implementation of the act does not violate this principle; as stated in the aforementioned Supreme Court case, Congress did not delegate their power to make the law itself. Congress did confer authority to the executive branch to implement the law, once crafted, but this is not so much different than what would be the case for any other law.

Under the provisions of the Constitution, Congress does have the authority to regulate interstate commerce, [12] but this being the case, does not the Congress also have the authority to identify the specific entity that will craft and enforce said regulations? After all, Congresspeople, themselves, rarely handle these matters on a day-to-day basis; hence, the enormity of the Federal bureaucracy. That the regulator, in this case, is a member of the Executive branch may, at first glance, appear to be an unwarranted delegation of Legislative authority, the law itself was already created; all that remains is for the provisions of the law to be executed. See here for additional examples of Congressional delegation of authority.

Additionally, reading through The Federalist also indicates that the authors were not so concerned with the accumulation of power by the Executive branch, but rather, by the Legislative branch. As the Legislature has full authority to create the laws by which the nation shall be governed, their authority naturally reigns supreme; after all, the President cannot make and enforce laws. He may suggest acts for consideration by the Congress, but he is limited in his ability to execute laws, as he may only execute those laws that have been passed by Congress. [13] This is not to say that we should not be on guard against the unrestrained accumulation of power in the Executive branch, but there is also some wisdom in vesting additional authority in a singular individual (or small group of individuals) in times of emergency. Historically, this was not an unknown phenomenon in representative governments; see, for example, the story of Cincinnatus. [14] Of course, on the negative side, Hitler also assumed additional emergency powers in pre-WWII Germany, and never gave them back, so there is legitimate reason to fear the usurpation of authority by a single branch of the government, but I simply do not see such usurpation occuring in this particular case.

Mind you, I am not at all comfortable with the scale of TARP and its arguably questionable results (or lack thereof). I do believe that there are legitimate challenges to be made regarding the legislation and its efficacy; I just do not believe that this particular route will be effective (or that it is even correct). Rather than diverting energy towards arguing what is likely to be a non-issue, I think it would be more appropriate to challenge and debate the TARP legislation on the basis of its true failures, namely, its inability to address the situation that originally prompted its passage. [15]


[1]: New York Times article, 15 January 2009.

[2]: Washington Post opinion piece, 29 March 2009.

[3]: FreedomWorks report, 13 January 2009.

[4]: James Madison, The Federalist, Number 47, Paragraph 3.

[5]: Ibid, Paragraph 7.

[6]: James Madison, The Federalist, Number 48, Paragraph 2.

[7]: Taking source material out of context is not uncommon in political discourse these days, or, for that matter, throughout history. This is one of the reasons that when I do quote source material, I often provide extensive quotations, so that the full context of the statements may be apparent.

[8]: 276 U.S. 384, Hampton Co. v. United States. Full text of the decision available here, at OpenJurist.

[9]: Ibid, Paragraph 18. Note that the FreedomWorks report only uses the first sentance of the paragraph, while ignoring the balance of the content that follows. See page 4 of the FreedomWorks report for the partial reference.

[10]: Ibid, Paragraph 21.

[11]: EESA = Emergency Economic Stabilization Act of 2008, which is generally known as TARP (Troubled Asset Relief Program), which was created as a result of the Act.

[12]: Article I, Section 9, Clause 3 of the U.S. Constitution.

[13]: Yes, I realize that there is a loophole, of sorts, in the form of Executive Orders, but these are still subject to judicial oversight, so while the President may attempt to usurp authority that is not his, such violations may be subsequently overturned after judicial review. See, for example, Lincoln’s suspension of the writ of habeus corpus during the Civil War; Lincoln’s action was subsequently found unconstitutional after judicial review. Full text of the decision in the subsequent court case, Ex Parte Merryman (17 F. Cas. 144), available here. Note that this was not a Supreme Court case, but Circuit Court case.

[14]: If the name doesn’t ring a bell, look it up. Its that important.

[15]: You know. Buying up “toxic” assets and freeing up the credit markets (neither of which, in fact, have been accomplished yet – seven months later).


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