Power Without Responsibility: How Congress Abuses the People Through Delegation.

For most of American history, argues New York University law professor David Schoenbrod in Power Without Responsibility, the Supreme Court rightly regarded delegation of Congressional law-making powers as unconstitutional. Like most of the Founders themselves, the Court rested its case on the clear meaning of Article I, which vests "All legislative power" in "a Congress of the United States." Only Congress had the power to make the laws, and it could not transfer this power to any other part of government.

Typical of this view was United States v. L. Cohen Grocery Co., (1921), when the Court struck down a statute making it a crime to charge "unjust or unreasonable" prices for any "necessaries." The Cohen Grocery Company could not be indicted for charging "high" prices for sugar because "Congress alone has power to define crimes against the United States. This power cannot be delegated."

Yet today, myriads of departments and agencies make law independent of Congress, and enforce them on an often unwilling public. Schoenbrod explains how we arrived at this situation and argues that it should be changed.

The election of Franklin D. Roosevelt represented the end of Congressional primacy in law. Working in an atmosphere of economic crisis, the president rammed through such laws as the National Industrial Recovery Act. The NIRA created an agency that generated and enforced its own laws dictating wages, prices, and production schedules.

In keeping with the times, the NIRA was patterned on the corporate state of Benito Mussolini, whom Roosevelt referred to in 1933 as that "admirable Italian gentleman." The same year, Schoenbrod points out, the "Reichstag delegated all its power to Adolph Hitler." Indeed, the similarities among Nazism, Fascism, and the New Deal "help explain why, according to a Gallup poll, close to a majority of the American public in 1936 thought that the New Deal could turn into a dictatorship" [p. 38].

New Deal intellectuals had argued that their administrative agencies would be composed of disinterested public servants. In fact, says Schoenbrod, they were often more amenable to industry pressure than elected representatives. For example, in 1933, Congress delegated to the secretary of agriculture the power to pass agricultural marketing orders, which cartelized the industry and limited how much each grower could ship.

This led to mountains of oranges left to rot in the sun. Why then have such a law? The head of Sunkist had warned his associated growers that without quotas, only those who produced the "best quality fruit" at the "lowest cost" would be able to thrive. Government management would, as usual, take care of that problem. And indeed, for decades, consumers and smaller growers were penalized for the benefit of the Sunkist label.

There's more than "rent-seeking" at work here, says Schoenbrod; delegation also explains how marketing orders came about. An explicit act limiting the supply of navel oranges and raising their cost to consumers would be politically difficult and perhaps impossible. But when the law came out of the depths of the bureaucracy, it could go almost unnoticed among the public. And Congressmen who received contributions from Sunkist could still work actively on its behalf, but behind the scenes with bureaucrats, instead of in the open, as the Constitution prescribes.

When the Supreme Court struck down some of the provisions of the NIRA in A.L.A. Schecter Poultry Corp. v. United States, Justice Cardozo criticized them as "delegation run riot." Justice Brandeis told a top Roosevelt aide, "This is the end of this business of centralization, and I want you to go back and tell the president that we are not going to let this government centralize everything. It's come to an end. As for your young men, you call them together and tell them to get out of Washington - tell them to go home, back to the states. That is where they must do their work" [p. 39]. Instead, Roosevelt launched an attack on the justices as senile ("the Nine Old Men") and succeeded in bending the Court to his will.

Now, suggests the author, we should "end, or at least severely curtail," delegation, which "undercuts democracy" and "undoes the Constitution's most comprehensive protection of liberty" [p. 14]. The Supreme Court should declare "unconstitutional all delegation of legislative power" [p. 20]. Schoenbrod suggests a phase-out of 12 years, which "would not be excessive, given our long dependence on delegation" [p. 175].

Missing from Schoenbrod's analysis, however, is attention to the separation of powers. Congress does not delegate in a vacuum; it surrenders power to the executive branch, under which all regulatory agencies operate. Schoenbrod typically describes Article I of the Constitution as vesting "the power to make laws in the house of Congress and the president" [p. 29]. But it does no such thing. Article I makes no mention of the president, who elsewhere is empowered with a veto but no law-making authority.

The author's argument is also harmed by too little attention to the broader structure of the Constitution itself. Under federalism, the states are distinct governing bodies with their own powers and constitutional autonomy; they created the central government and not the reverse. States' rights are a road to ending Congressional delegation, but the concept is neglected in this book, as is the idea of enumerated powers. In original understanding, after all, the federal government is barred from doing anything it is not explicitly charged to do by the Constitution.

Thus the author's strict constructionism is commendable, but selectively applied. Under original understanding, for example, the power of the Supreme Court to declare laws unconstitutional is itself usurped. No where does the Constitution grant the Court this authority. Nor is it possible to indict the libertarian Articles of Confederation with "barely ha[ving] sufficed to win the Revolutionary War" [p. 27] since they only came into effect in the last few months. Indeed, in light of the Constitution's failure to guard against government intrusion - exactly as its original opponents predicted - it is time to revisit the Articles.

Llewellyn H. Rockwell, Jr. Ludwig von Mises Institute