Jupitersterrain 5

13.54, 5.08.12.

We can hope that the disparity between the law’s inoffensive language and a decree that roils personal morals and constitutional law may lead the Supreme Court to reconsider to what extent modern legislation empowers administrators to make new laws, and thus to rule by decree.

Under President Franklin Delano Roosevelt, the 1933 National Industrial Recovery Act constituted boards to regulate various parts of the economy. They set prices and working conditions for everything from poultry to pants, and ended up fining a tailor for pressing pants for 35 cents instead of 40 cents, and a producer of kosher chickens of selling too cheap.

In 1935, in Schechter Poultry Corp. v. United States, the Supreme Court unanimously struck down the NIRA because Congress could not give legal force to rules it had not passed. Congress cannot create new legislators because it cannot delegate its Constitutional power to legislate. The basis for that decision, “res delegata non deleganda est” (delegated powers are not to be delegated further)

By passing a law that delegates legislative powers, Congress can also contradict existing law and even negate the premises on which the law itself was passed. In short, the delegation of legislative power turned out to be a ruse for achieving by decree what could not be achieved by honest legislation.

While the substance of the ruse is not justiciable, the use of laws as screens for executive power not bound to law and even contrary to law should remind the Justices of the reason why non-delegation has been a principle of law for 2,000 years, why they learned it in law school, and why it might be a good idea to steer the ship America back in its direction.

Today, we live less by laws than by decrees conceived, enforced, and adjudicated by so-called “independent agencies” such as the Environmental Protection Agency. The civics books call them “quasi-legislative, quasi-executive, quasi-judicial.”For ordinary citizens, “quasi” means “the decrees and the decreers are beyond your reach.”Lady Law is no longer blindfolded holding balanced scales. Since now she must weight the rules in exquisite detail, Lady Law’s eyes have to fix sharply on the scales she is fixing.It’s no wonder that we are learning to treat her more as the tramp she is than as the lady she was.

http://www.crisismagazine.com/2012/43978