The Constitution of the United States assigns various responsibilities to its Congress. Congress has increasingly slipt into a practice of delegating these responsibilities to other institutions. However, Congress is not empowered to amend the Constitution, to reduce the responsibilities of Congress or for other purposes; in that context, a legal theory that delegation of Congressional responsibilities were unconstitutional used to influence decisions of the US Supreme Court, and various liberal and conservative theorists have been arguing for a revival of that theory. Others are arguing that delegation is perfectly constitutional, so long as Congress retains the power to rescind the delegation, and thus retains ultimate responsibility.

While discussion of revival of that legal theory seems to be concerned with regulatory bureaucracy, delegation of another sort has been the subject of a separate discussion. Repeatedly, the Congress has obliquely delegated its power to declare war to the Office of the Presidency. The last time that the Congress itself declared war was in 1941, but the US has engaged in many subsequent wars, without quite formally calling them wars. The most recent such delegation occurred during the Administration of GW Bush, and remains in effect. In the wake of recent actions by the Trump Administration, a majority in each chamber of Congress assert that they want to withdraw some of that delegation; but they do not have the super-majority presumably required to over-ride a veto.

The reason that I wrote presumably is because, if indeed Congress is empowered to delegate its responsibilities so long as it is able to rescind that delegation, then they cannot have made a delegation that the President can veto; Congress must be able to rescind the delegation with a simple plurality vote. This Congressional power must obtain in the declaration of war, and it must obtain in the empowering of regulatory bodies the rules of which have the force of law.

An exception to the President's power to veto is hardly a trivial matter, and arguing that such an exception is present but only implicit is at least a bit breath-taking. But if that exception does not hold then the old theory that Congress could not delegate its responsibilities seems the only alternative compatible with the Constitution. And, in that case, the aforementioned regulatory bodies must be abolished, and there can be no more waging of war without Congressional declaration.

Tags: non-delegation, regulation, U.S. Constitution

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