Even though I have a great deal of concern over the commerce clause being so vastly expanded under the Supreme Court’s current case law, I wonder if we’re not being strategically short sighted in focusing on it. Rather, I’m wondering whether we ought to be focusing on the non-delegation doctrine, since if you look at how the courts are interpreting it today, it’s really a big chunk of what’s enabling the out-of-control and unaccountable regulatory state; what’s often called the Fourth Branch of Government.
The problem with revoking the New Deal commerce clause ruling is so much popular legislation is dependent on it, and the Supreme Court is typically reluctant to become overly politicized, lest they bring about a confrontation with the political branches. It’s not a minor concern for the Court, as happened before when the Court invalidated the National Industrial Recovery Act (which incidentally was a non-delegation case). But the Court eventually capitulated to the New Deal.
By contrast, strengthening the non-delegation doctrine wouldn’t have as much effect on popular legislation. What got me thinking about it was the new FTC blogger regulations. If you look at the enabling legislation that creates the FTC, it’s appalling it’s even constitutional:
The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, …. from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.
So FTC gets to decide, all on its own, without Congress having to pass a single law, that your activity is “unfair competition” or a “deceptive act” and you are given no recourse except through the federal courts. The FTC is, essentially, a lawmaking body. Sadly, the Supreme Court has already ruled that similar bodies are constitutional, as it did in the 1989 case of Mistretta v. United States, where the Court upheld the Federal Sentencing Commission. That case was decided 8-1, with Justice Scalia being the lone dissenter. Scalia says in his dissent:
By reason of today’s decision, I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “now-in” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set — not because of the scope of the delegated power, but because its recipient is not one of the three Branches of Government. The only governmental power the Commission possesses is the power to make law; and it is not the Congress.
Back then, Scalia was really the only principled judicial conservative on the court. Now we have three others. Perhaps it is time for libertarians and conservatives to put aside the Commerce Clause battle for now, and focus on strengthening the non-delegation doctrine. It would have less of a public impact, but would have a significant impact in reigning in a lot of the regulatory excesses that have come about since the New Deal. At the least, it would keep Congress busy for a while, having to create more detailed statutory authority to guide agencies and commissions.
The issue also messages better than Commerce Clause. Take this meme, for instance:
“If Congress wants to make something illegal, they should have to pass a law.”
I think you’d find most people in agreement with that. It’s simple, and easy to understand. Compare that to presenting the Commerce Clause to people:
“Should the Endangered Species Act really be considered a legitimate exercise of Congress’ commerce powers?”
I think this issue ought to get more attention that it does from libertarians and conservatives. It might be more achievable. A lot of people would not be comfortable with the FDA or USDA disappearing, but would anyone really miss the FTC?