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Next Monday the United States Supreme Court begins a new term. Already on the Court's docket are several significant cases testing the Court's recent federalism jurisprudence. Solid Waste Agency v. U.S. Army Corps of Engineers considers whether the occasional presence of migratory birds in a wholly intrastate wetland is sufficient to confer jurisdiction in the Army Corps of Engineers under Congress's power "to regulate commerce among the states." In University of Alabama Board of Trustees v. Garrett, the Court will consider whether the Americans with Disabilities Act was enacted pursuant to Congress's powers under the 14th Amendment rather than under the Commerce Clause, and thus whether suits against the states are permitted or are barred by the sovereign immunity doctrine the Court has derived from the 11th Amendment. And in Cook v. Gralike, the Court will again take up term limits, addressing whether it is permissible for a state to identify on an election ballot a candidate's position on the issue.
All of these cases raise important questions about the role of the states in our constitutional system. Our nation's Founders designed a system of government based on a division of the people's sovereign powers between the national and state governments, so that each level of government could serve as a check against the abuses of the other.
The separation of powers between state and national governments was only one-half of the Founders' constitutional vision, however. One of the chief "auxiliary precautions" devised by the Framers of our Constitution to protect the people's liberty lies in the very structure of the Constitution.
Drawing on the political theory of Locke and Montesquieu, the framers designed the new government so that the legislative, executive, and judicial functions of government were separate from one another, out of recognition, as James Madison put it in Federalist 47, that the "accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny."
Our nation's Founders viewed this separation of powers within the national government as a complement to the structural federalism that the Supreme Court has in recent years revitalized to protect the people's liberty. Madison called the two structural components of our constitutional system a "double security" for the "rights of the people."
Our Constitution assigns its enumerated legislative powers to the Congress, and does not permit Congress to delegate its lawmaking function to the executive or the judicial branch. This structural protection had two purposes: it guaranteed that those who made the law were accountable to the people, and it ensured that the laws were made by the body best suited for deliberation.
For more than sixty years, however, this "non-delegation" doctrine has been honored only in the breach. This term, the Supreme Court will hear a case addressing whether that old principle, which our Founders thought essential to liberty, has any lingering vitality. At issue in Browner v. American Trucking Associations, Inc. is whether Congress improperly delegated its lawmaking powers to the Environmental Protection Agency when, in the Clean Air Act, it authorized the EPA to set national air quality standards at levels "requisite to protect the public health" with an "adequate margin of safety." How high the air quality standards should be, and at what cost, are quintessentially legislative decisions that constitutionally must be made by Congress alone. The Court of Appeals therefore held that the Clean Air Act is unconstitutional unless the EPA can offer an interpretation of the statute that confers upon the EPA only a gap-filling, and not a lawmaking, authority.
Browner is a highly complex case, but much more is at stake than just national air quality standards. In a way, the validity of the entire administrative state is at stake. Independent administrative agencies, run by government officials who are neither elected to their new lawmaking capacity nor answerable to the chief executive, combine the lawmaking, executing, and judging functions of government in a single place — the "very definition of tyranny," according to James Madison.
The repudiation of the constitutional separation of powers principle was no accident. The assault on this foundational component of the Constitution's structure was waged openly during the heyday of the Progressive movement, and greatly expanded during the New Deal movement in the 1930s and the Great Society movement of the 1960s. The Progressive vision, propounded by such devotees of the administrative state as Woodrow Wilson, viewed the separation of powers as a barrier to rather than a facilitator of good government. Under Wilson's theory, the government needed to be freed from the shackles of separation of powers so that a professional class of government bureaucrats could manage the government, the economy, and our lives with precision and efficiency. Government "gridlock" became an evil to be overcome rather than a means for fostering the kind of public deliberation that could ensure that the public good, rather than the transient will of temporary majorities or special interests, would be furthered.
After nearly a century of experience in this country with a partially centralized administration, and with the disastrous results of the former Soviet Union's purer form of centralized socialism, it is time to realize that Wilson's experiment has failed. The Supreme Court can take a major step in that direction by reinvigorating the non-delegation doctrine when it decides Browner.
