Rules For Rules

Consider this oddity. In New York, if you purchase one bagel at a bagel store, it is not subject to sales tax… provided you purchase it intact. A bagel with cream cheese, or butter, or even simply sliced in half is subject to sales tax.

Why is this? Because an unaltered bagel is a grocery (untaxed), but a bagel that has been altered in any fashion is foodservice (taxed).

Such are the necessary details and codifications that derive from broader laws and rules. It’s odd that the mere act of running a knife through a toroidal piece of bread is a taxable event, but it’s inevitable that someone had to draw that line in the sand, once it was decided that groceries are untaxed but foodservice is taxed.

It also illustrates a reality about governance, especially the sort of all-pervasive governance that many take for granted, many desire, and some lament. Every big rule will spawn lots of little rules, including little rules that were not foreseen and may be undesirable. I find the bagel slicing rule silly but understandable.

But, even “understandable” can be problematic in such cases under our rules of government.

The first legally binding words written in the Constitution (the Preamble is a statement of purpose) read:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

This plain statement leads us to the “Nondelegation Doctrine,” whose meaning should be obvious: that Congress cannot delegate its legislative power/duty to not-Congress. This doctrine was weakened by a landmark Supreme Court decision in 1928, J. W. Hampton, Jr. & Co. v. United States, which allowed delegation of legislative power to the executive branch provided Congress delineated an “intelligible principle.” It was subsequently affirmed in part in 1935’s A.L.A. Schechter Poultry Corp. v. United States, which said that Congress could not simply tell the President/executive branch “regulate this industry however you choose.” So, the Court gave Congress some right to delegate, 80+ years ago.

Since then, however, the Court has declined to rein in the delegation of legislative authority to the administrative state, a delegation that has created the infinitely-tentacled monster that is today’s bureaucracy. Again, it’s understandable that legislators and the people who work for them cannot think of every possible circumstance and detail, and it’s a very tall expectation that they craft language that, without any room for doubt, assures their intent in every circumstance.

Fortunately, that concern is already covered. The legislature writes the law. The executive implements the law. The courts interpret the law. If someone thinks an implementation runs outside the strictures of the legislation, he can ask the courts to adjudicate the matter.

What we have today, however, is the shift of both writing and interpreting to the executive branch, i.e. the administrative state. This suits many politicians just fine, because it lets them do two things: devote more time to fundraising (Job #1 is getting re-elected) and avoid going on-record as supporting or opposing particular details that might be controversial. That this abdication of responsibility directly contradicts the oath of office (…do solemnly swear (or affirm) that I will support and defend the Constitution of the United States…) is of little consequence – The House re-election rate has not dipped below 85% in my lifetime.

And, unfortunately, the Court actually affirmed delegation in 1989’s Mistretta v. United States, where it stated:

…a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives…

Thus, as long as Congress offers a clear enough directive, the Executive Branch is otherwise unconstrained in writing and implementing rules as it deems fit, and the Court is limited to deciding a – whether the directive is clear enough, and b – whether the rule fits the directive.

Again, understandable, but “understandable” has led to bureaucracy run amok, to the detriment of both liberty and accountability. Congress has largely abandoned its rule-writing, choosing instead to invest the “fourth branch” with that power via broad, omnibus legislation chock-full of directives.

Hope has since glimmered, with Justice Neil Gorsuch opening the door to revisiting the enforcement of the non delegation doctrine in the recent Gundy v. United States. Gundy didn’t take the power back, but in it Gorsuch’s opined:

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.

That 84 years refers to the aforementioned Schechter, which is the last time the Court voided an over-delegation of power.

Those of us who want limited and accountable government should embrace this glimmer of hope and root for this Court to hear a case that would allow them to rein in the administrative state.

Many others, however, might say, “Why should this matter?”

It’s fun to make fun of politicians by pointing out their ignorance or apparent stupidity, but if there is one skill that a politician has, it’s craftiness. As is observed in one of my favorite movie quotes of all time, they are “cheats and liars.” The ability to offload rule making onto others is not simply an abdication, it’s a way to sneak things past the voters, and left unchecked, will only get worse.

I offer a prediction and warning for the pro-gun and liberty-minded. Four years ago, I detailed how the enactment of a universal background check law (currently a popular idea in the gun control debate) could provide an administrative back-door to universal registration, something that every gun owner should dread, denounce, and resist. A few weeks ago, I discussed how red flag laws could, among other things, empower the administrative state to make up its own rules and requirements by which to forcibly disarm an individual, nondelegation and due process concerns notwithstanding. By extension, unexpected and undesirable rules can emerge from any broad Congressional directive. It would be left to the courts to decide if the administrators overreached, but that’s a process that can take years, that often falls flat (due to judicial deference), and that removes the accountability of the ballot box to some degree.

Restoring the nondelegation doctrine would merely force Congress to do its job, to actually write laws and be accountable at the ballot box for those it wrote. It would also take power away from the Presidency, power decried by aspirants who then proceeded to expand it. If there are to be rules, they should be written by those properly empowered to do so, not by those whose job is to implement them.