Ken Klukowski

President Obama announced his willingness Monday to pour billions more into American automakers, using the 2008 bailout legislation. On Sunday, conservative intellectual George Will wrote in the Washington Post that the legislation is unconstitutional. However, Will suggests a cure that may be worse than the disease, promoting the far-left position that courts should intervene.

Last year Congress passed a $700 billion bailout for financial companies. Then, when Congress later rejected a bailout for automakers, President Bush spent billions anyway, reversing his earlier position that the first bailout law didn’t authorize such spending and that new legislation was required. Now President Obama is multiplying President Bush’s actions by an order of magnitude, spending trillions of dollars. And the car companies will get another multi-billion dollar subsidy from taxpayers.

George Will—a towering intellect (Ph.D. Princeton) but one without a law degree—argues that the original legislation is unconstitutional because it violates the nondelegation doctrine. The bailout may be unconstitutional, but George Will’s suggestion could take us out of the frying pan and into the fire.

When the legislative and executive branches reject their constitutional limits, the solution is not to ask the judicial branch to do likewise. Two constitutional wrongs don’t make a constitutional right.

First, nondelegation doctrine states that Article I of the Constitution assigns lawmaking power to Congress, and forbids delegating it to the executive branch. But courts are extremely deferential regarding this question. The courts merely require some sort of “intelligible principle” embodied in the legislation, and will bend over backwards trying to find one. This is because Congress must often give some level of flexibility to the executive in how to implement a law. A line must be drawn, and the question is simply where to draw it. Consequently, the Supreme Court has only struck down two laws in history for violating this doctrine (both in the 1930s) and upheld many laws that appear as vague as the bailout legislation.

Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.