Writing in The New Republic, Jeffrey Rosen of George Washington University Law School makes a prudential point: "The military-spending scandals during World War II, exposed by the Truman Committee, showed the risks for corruption and fraud when the executive branch is given a free hand to spend vast amounts of money." But even in the unlikely event that the executive branch exercises its excessive EESA discretion efficiently, the mere exercise would nevertheless subvert the principle of separation of powers which, as Justice Louis Brandeis said, was adopted "not to promote efficiency but to preclude the exercise of arbitrary power."
As government grows, legislative power, and with it accountability, must shrink. The nation has had 535 national legislators for almost half a century. During that time the federal government's business -- or, more precisely, its busy-ness -- has probably grown at least twenty-fold. Vast grants of discretion to the executive branch by Congress, such as EESA, may be necessary -- if America is going to have constant governmental hyperkinesis. If Washington is going to do the sort of things that EESA enables -- erasing the distinction between public and private sectors; licensing uncircumscribed executive branch conscription of, and experimentation with, the nation's resources.
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.
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