“No soup for you!” Most people have heard this famous line from one of Seinfeld‘s most popular characters, the “Soup Nazi.” George struggles to correctly order his soup due to strict guidelines the chef has in place. Easily denying George his delicious soup for any number of arbitrary reasons. “Shh, I’m shifting into soup-mode” George says in this famous scene.
See it here: https://youtu.be/ryNxl-lpOME
This scene is hilarious for a number of reasons but also seems to be analogous of the relationship between government agency overreach and private citizens/businesses. In this analogy the Administrative State is the Soup Nazi. Creating capricious nonsensical rules in order to purchase something as simple as a bowl of soup. George is the “little guy,” wading through layers of rules and silly customs hoping to appease the Soup Nazi in fear of being banned for a week or a year!. “No soup for you! Come back one week!”
No delegation for you! It’s about time to flip the script and regain control of the Executive Branch Agencies making AND enforcing their own rules, mandates, regulations, and laws. It’s time to clarify to the Legislative Branch that there is NO SUCH THING as a proper delegation of power or authority to another branch. The Legislature has allowed the Executive branch to run roughshod over its citizens long enough. Hasn’t the last 3 years proven this?
Since I’ve been in a continued legal battle with the State of Michigan for keeping my restaurant, The Iron Pig Smokehouse open during 2020/21, nearly three years later I’ve learned quite a bit about the Administrative Procedures Act and Administrative Law. To be honest, way too much for a restauranteur. Credit must be given where credit is due. My attorney David Delaney has done an incredible job making this stuff easier to understand. We’ve battled over 5 government agencies including the Liquor Control Commission, Department of Health & Human Services, Occupational Safety Health Administration, Department of Agriculture & Rural Development, Health Department of Northwest Michigan, and City of Gaylord.
Now comes the “Administrative branch.” The Fourth Branch of government, ostensibly governing these Administrative agencies. In reality, it has grown in such a dramatic way coupled with authoritarian tendencies, has lent itself in recent years especially to being a tyrannical government bureaucracy accountable to no elected official, but rather appointees. It is worth noting, not simply just agency directors but also administrative law judges. Ya know, the ones “interpreting” their own rules. The scales are a bit weighted if you catch my drift. And if you can’t, you might wanna stop reading now. Some of this stuff is a bit wonky and nerdy, and some would suggest that’s by design.
Over the course of the next few pages you'll see a clear and present need for embarking on a renaissance of sorts with regards to governing and the basic principles of the Separation of Powers. The plain language in our state's Constitution affirmed by the Constitution of the United States and the lack of delegating authority. Things you're likely to learn more about: Vesting Clauses, Non-Delegation, Intelligible Principles, and how to change course.
The nondelegation doctrine is alive and well in the states. Separation of powers is a bedrock principle to the constitutions of each of the fifty states.
Any elementary school student can tell you that the legislature “makes the law”, the executive “enforces the law”, and the judiciary “interprets the law”.
Adopted in 1789, the U.S. Constitution does not explicitly address separation of powers. Most state constitutions contain explicit separation of powers. The overwhelming majority of modern state constitutions contain a strict separation of powers clause. Michigan is one of them.
First adopted in 1835, the Michigan Constitution provided in pertinent part:
Article III Section 1 Division of the Powers of Government
The powers of government shall be divided into three distinct departments: the Legislative,
the Executive and the Judicial; and one department shall never exercise the power of
another, except as expressly provided in this constitution.
The Michigan Constitution of 1963 provides in pertinent part:
Article III Section 2 Separation of Powers of Government
The powers of government are divided into three branches: legislative, executive and
judicial. No person exercising powers of one branch shall exercise powers properly
belonging to another branch except as expressly provided in this constitution.
Thirty-five states contain “strict” separation of powers clauses. Another five have general separation of powers clauses. The remaining ten states have no explicit separation of powers clause. In these states, separation of powers is inferred from the vesting of powers to each of the branches of government in a manner similar to its inference from the vesting of power among the branches in the U.S. Constitution3.
Forty-eight state supreme courts have, in recent memory, invoked the separation of powers as justification for their state’s nondelegation doctrine (The two exceptions are Delaware and Rhode Island)4.
In the Rhode Island Constitution the nondelegation doctrine arises when it is contended that there has been an impermissible delegation of legislative power to an administrative agency. Whereas, the separation of powers doctrine prohibits the usurpation of the power of one branch of government by a coordinate branch of government5.
In other words, in Rhode Island, the separation of powers doctrine is violated when one
branch proactively takes power “vested” in a coordinate branch. The nondelegation doctrine, however, is violated when the legislature gives away legislative power-voluntarily-to an agency.
In state and federal nondelegation cases decided between 1940 and 2015, state courts are by far the most popular venue for nondelegation challenges as they heard 85% of all nondelegation challenges6. In a 2018 journal review, twenty-two state supreme courts held that the challenged state statutes violated the nondelegation doctrine7.
2 The University of Chicago Law Review September 2003.
3 Vanderbilt Law Review October 1999.
4 Vanderbilt Law Review 2022 5 Woonsocket v Chafee 89 A.3d 778 (R.I. 2014)
6 The Nondelegation Doctrine: Alive and Well, 93 Notre Dame Law Review (2017)
7 The Journal of Law, Economics and Organization 2018.
8 Hampton v United States 276 US 394 (1928)
The 1928 landmark U.S. Supreme Court case8 that set out the “intelligible principle” doctrine grounded its holding in state law.
In 2001, Justice Thomas determined that although “this Court since 1928 has treated the ‘intelligible principle’ requirement as the only constitutional limit on congressional grants of power to administrative agencies”, the “Constitution does not speak of intelligible principles” Rather, it speaks in much simpler terms: All legislative Powers herein granted shall be vested in Congress.
The court continued that “I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than legislative.
The court concluded that “on a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founder’s understanding of separation of powers”.9
In 2015, Justice Thomas determined the Court has abandoned all pretense of enforcing a qualitative distinction legislative and executive power. The “intelligible principle” test does not keep executive lawmaking within the bounds of inherent executive discretion. Perhaps we were led astray by the optical illusion caused by different braches carrying out the same functions, believing that the separation of powers would be substantially honored so long as the encroachment were not too great.
For whatever reason, the intelligible principle test now requires nothing more than a minimal degree of specificity in the instructions Congress gives to the Executive when it authorizes the Executive to “make rules having the force and effect of law”.
Under the guise of the intelligible principle test, the Court has allowed the Executive to go beyond the safe realm of factual investigation to make political judgments about what is “unfair” and unnecessary”. Our mistake lies in assuming that any degree of policy judgment is permissible when it comes to establishing generally applicable “rules governing private conduct.”
We should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power.
The Constitution categorically forbids Congress to delegate its legislative power. Congress creates the rule of private conduct, and the Executive makes the factual determination that causes that rule to go into effect.
The Constitution in the “Vesting Clauses” commits governmental power to three branches of Government. When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it10.
Following the US Supreme Court’s 2019 Gundy11 decision, a revolution regarding the nondelegation doctrine reached a fever pitch12.
The court is poised to revisit, and is likely to revive, the constitutional bar on delegating legislative authority13. Dissenting in Gundy, Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, lamented the court’s “intelligible principle misadventure,” Justice Alito agreed to reconsider the court’s position. Gundy was decided before Justice’s Kavanaugh and Barrett joined the court. Justice Kavanaugh recently wrote that Justice Gorsuch’s thoughtful Gundy opinion raised important points14. As a law professor, Justice Barrett described the intelligible principle doctrine as “notoriously lax.”15
On October 2, 2020, the Michigan Supreme Court, citing Gundy, struck down the emergency powers of the governor, as a violation of the nondelegation doctrine and the Michigan Constitution’s strict separation of powers16.
In an “appropriate future case, I would consider adopting the approach to nondelegation advocated by justice Gorsuch in Gundy.” Justice Viviano concurring In Re Certified Questions.
On January 13, 2022, the U. S. Supreme Court, citing Gundy, struck down the OSHA vaccine mandate as a violation of the nondelegation doctrine and U.S. Constitution’s separation of powers17.
The OSHA court ruled that the government’s power to make laws remains where the Constitution says it belongs-with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of, they must at least be able to trace that power to a clear grant of authority from Congress.
The nondelegation doctrine ensures a democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.
On January 13, 2022, the same date as the OSHA ruling, the 46th Circuit Trial Court Otsego County, citing In Re Certified, struck down the emergency powers of the state health department as a violation of the nondelegation doctrine and the Michigan Constitution’s strict separation of powers18.
On June 30, 2022, the U.S. Supreme Court, citing Gundy, struck down the EPA mandate as a violation the nondelegation doctrine illuminating again the U.S. Constitution’s separation of powers19.
he EPA court found that states have robust nondelegation doctrines to ensure democratic accountability in their state lawmaking processes. J. Gorsuch concurring
The Supreme Court cited The Regulatory Review October 15, 2020, which heralded the Michigan Supreme Court’s October 2, 2020 decision in In Re Certified Questions.
The U.S. Supreme Court has good reason to consult state nondelegation jurisprudence. State courts seek out common American values.
Many state courts have the constitutional authority to evaluate legislation more frequently than federal courts; thus, state courts may have more experience addressing the validity of legislative delegations than their federal counterparts20. State nondelegation cases should rightly be considered persuasive authority at the federal level when the federal doctrine is revived. 20 11 Hofstra Law Review 1185 (1983)
The U.S. Supreme Court could take a cue from Michigan and other states on reviving the nondelegation doctrine.
The U.S. Supreme Court is inviting the inspiration of the Michigan Supreme Court and other state courts to revitalize the nondelegation doctrine that is central to preserving the U.S Constitution’s separation of powers. Regulatory Review
9 Whitman v American Trucking Association 531 US 457 (2001).
10 Department of Transportation v Association of American Railroads 575 US____(2015)
11 Gundy v U.S. 139 S. Ct. 2116 (2019) Gorsuch dissenting.
12 Emory Law Journal 2022.
13 Washington Legal Foundation January 31, 2022.
14 Paul v United States 589 US ___(2019)
15 Cornell Law Review January 2014
16 In Re Certified Questions Michigan Supreme Court Case No. 161492 (2020)
17 National Federation v OSHA 595 U.S.____(2022)
18 Moore Murphy Case No. 21-18522-AE (2022)
19 West Virginia v EPA 597 U.S.____(2022)
20 Hofstra Law Review 1185 (1983)
I. THIS COURT SHOULD ADOPT THE CONSTITUTION’S PLAIN TEXT OF “VESTED”
II. THIS COURT SHOULD ABANDON THE “INTELLIGIBLE PRINCIPLE” DOCTRINE
III. THIS COURT SHOULD ABANDON THE TERM “DELEGATION”
IV. THE COURT SHOULD REIN IN THE FOURTH BRANCH OF GOVERMNMENT ; THE TYRANNY OF THE ADMINISTRATIVE STATE
Our founding document begins by declaring that “We the People…ordain and establish this Constitution”. From that premise, the Constitution proceeded to “vest” the authority to exercise different aspects of the people’s sovereign power in three branches of government; legislative, executive and judicial. Gundy
Delegation should be abandoned because the Michigan Constitution speaks of vested rather than delegating. A congressional transfer of legislative powers violates the Constitution’s vesting of such powers in Congress and divests Congress of the power vested in it21.
The constitution of 1851 vests the legislative power in this state in a senate and a house of representatives22.
The Constitution bars Congress from delegating any legislative power. The Constitution does not speak to delegation. The Constitution uses vesting language of powers and strict separation of those powers.
The Michigan Constitution vested powers in three branches of government; legislative, executive and judicial. This not merely conveys the powers, but makes their location mandatory:
Article IV Section 1 (legislative); Article V Section 1 (executive); Article VI Section 1 (judicial); Article III Section 2; (separation of powers)
Power is “vested” in each branch and one branch “shall” not exercise power of another branch.
21 New Civil Liberties Alliance
22 People v Collins 3 Mich 343 (1854)
The Articles of the Michigan Constitution respectively vest the legislative, executive, and judicial powers each in a separate department of the government. The separation, by which each department may exercise only its own constitutional powers, is fundamental to the idea of a limited government accountable to the people. The principle is “particularly noteworthy” in regard to the Congress.
That the power assigned to each branch “must remain with that branch”, and may be expressed only by that branch, is central to the theory. The Governor and the courts are vested with the executive and judicial powers, respectively.
Neither power includes a general power of lawmaking. Nor can the Congress confer such a lawmaking power by statute, for the simple reason that the “Congress has no enumerated to create lawmakers.”
When the Constitution says legislative power is vested in Congress, it requires them to be there not elsewhere. That is, when legislative powers are shared with the Executive, they are no longer vested merely in Congress, and the sharing thus violates the Constitution’s injunction24.
The phrase “is vested” is decisive. It is evident the Constitution requires its powers be vested in their respective branches of government. Because of the plain text, vested and shall, this location is mandatory. A power that the Constitution says is vested in one branch cannot be located elsewhere.
Nor can the body that the Constitution vests with the power be divested of it.
Legislative powers cannot be divested from Congress to an administrative agency or vested elsewhere. This would contradict the Constitution’s vesting of legislative powers in Congress. This sharing vests legislative powers contrary to where the Constitution says it is vested.
Constitutional powers cannot be “vested” anywhere but where the Constitution says it “is vested”. The delegation interpretation rewrites the Constitution.
Legislatures have no power to appoint deputy legislatures25.
“One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust26.
21 New Civil Liberties Alliance
22 People v Collins 3 Mich 343 (1854)
23 Heritage Foundation January 6, 2011
24 Nondelegation Blues
26 Thomas M. Cooley Constitutional Limitations 1868
Congress cannot divest itself of what is vested in it. The Constitution does not permit Congress to be divested of the powers that the Constitution says is vested in it.
A transfer of power cannot accurately be considered a delegation. It is a divesting of legislative power.
Once the Constitution has said that Congress is vested with such power, that body cannot be divested of it by a mere statute.
Delegation is a question of sharing. If the Constitution’s legislative powers is vested in Congress they cannot be shared outside Congress.
A mere statute cannot vest the executive branch with power that the Constitution says is “vested” in the legislative branch and the executive branch “shall” not exercise power of the legislative branch.
The logic of the Constitution’s phrasing is very powerful.
A statute cannot divest Congress of the power that the Constitution says is vested in Congress. The Constitution mandates where its powers must be located. The Constitution bars any divesting of the powers or vesting of them elsewhere.
The people of the State of Michigan “vested” the legislative powers in Congress and thereby precluded congress from vesting in others, or divesting itself of, such powers.
The absence in the Constitution of text allowing delegation shows that delegation of legislative power is forbidden. Congress can do nothing with that power not explicitly permitted elsewhere in the Constitution, and because delegation is not mentioned, it is barred27.
The “power of enacting laws cannot be delegated by the legislative body even to the people”. The Constitution vests the power of legislation in a select body. There it must remain until the Constitution itself is changed or abrogated. They have no authority to delegate their powers. We are not aware of that any jurist in this country has ever expressed a different opinion28.
The law making power is expressly vested in the legislative department. There it was deliberately and intentionally placed. There and there only, must this general law making power and be exercised for weal or for woe, until the government is changed by revolution or by another set of the collective sovereignty.
The law making power is exclusively conferred upon the legislature is absolute and unconditional and it cannot by that body be delegated without an open violation of the constitution. This law making power, the most important of all governmental powers, is absolute and unconditional: that it cannot be delegated to avoid legislative responsibility.
There is no proposition more clear and no principle more plain or certain, than that every act of a delegated authority is void.
The Constitution is a fiduciary instrument29. Because the different branches of government are fiduciaries with their powers delegated to them by the people, they cannot subdelegate their authority because there is no express authority to do so in the Constitution. As agents, the powers of Congress and the Executive Branch must be strictly construed30.
The rule against subdelegation of legislative authority is among the clearest constitutional rules one can imagine31. The Constitution does not permit such a subdelegation of legislative power to other actors. Indeed, there are few propositions of constitutional meaning as thoroughly overdetermined as the unconstitutionality of subdelegations of legislative authority32.
27 Legislative Powers : Not yours to give away
28 People v Collins
29 I’m Leavin’ It (All) It Up to You Gundy and the (Sort-Of) Resurrection of the Subdelegation Doctrine (2019) Gary Lawson
30 “A Great Power of Attorney” Understanding the Fiduciary Constitution (2017) Lawson & Friedman
31 Delegating or Divesting
32 I’m Leavin’ It (All) It Up to You
46TH CIRCUIT TRIAL COURT OTSEGO COUNTY
The January 13, 2022 opinion of the Honorable Colin G. Hunter has been called “a breath of fresh air in many respects”. Katherine Henry Constitutional Attorney Restore Freedom
Katherine Henry asserted I wish Judge Hunter would “tell these other justices up at the United States Supreme Court they need to start at square one”.
In the January 13, 2022 OSHA decision citing Gundy, Justice Gorsuch observed that the nondelegation doctrine ensures the government power to make the laws that govern us remains where the Constitution says it belongs-with the people’s elected representatives.
The separation of powers ensures that any new laws governing the lives of Americans are subject to the robust democratic process the Constitution demands.
In the June 2022 EPA decision citing Gundy, Justices Gorsuch and Alito found that the Constitution assigns all legislative Powers to Congress and bars their further delegation. Permitting Congress to divest its legislative power to the Executive Branch would dash this whole scheme. J. Gorsuch Gundy June 30, 2022.
Judge Hunter and counsel did not have the benefit of the Supreme Court decisions in OSHA and EPA with respect to the nondelegation and the intelligible principle doctrines.
Accordingly on January 13, 2022, Judge Hunter was bound by Stare Decisis to follow the In Re Certified Questions decision with respect to the nondelegation and the intelligible principle doctrines.
The “intelligible principal” doctrine now faces the chopping block. The intelligible principal doctrine “has no basis in the original meaning of the Constitution”. Gundy The intelligible principle doctrine “has been abused to permit delegations of legislative power that on any other conceivable account should be held unconstitutional”. Gundy
The notion of an intelligible principle sets a ludicrously low standard for what Congress must supply. Gundy The intelligible principle rule has been referred to as “toothless”33.
Justice Clarence Thomas articulated that there are cases in which the “principle is intelligible” and yet the significance of the delegated decision is simply too great for the decision to be called anything other than legislative.34
The Michigan Supreme Court ruled that in “interpreting our Constitution, we are not bound by the United States Supreme Court’s interpretation of the United States Constitution, even where the language is identical.” “We may not disregard the guarantees that our Constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection” under the federal Constitution35.
To reinvigorate the nondelegation doctrine the courts must abandon the “intelligible principle fiction”-to do so.36
What’s the test?
The Executive Branch may engage in fact finding37 :
(1) Does the statute assign to the executive only the responsibility to make factual findings?
(2) Does it set forth the facts that the executive must consider and the criteria against which to measure them?
(3) And most importantly, did Congress and not the Executive Branch, make the policy judgments ?
The “intelligible principle” the Constitution demands is the traditional rule that Congress may leave the executive the responsibility to find facts and “fill up the details”.38
A statute unconstitutionally delegates legislative power when it39;
1) allows the agent (actor to whom the authority is delegated) to issue general rules governing private conduct that carry the force of law;
2) makes the content or effectiveness of those rules dependent upon the agent’s policy judgment, rather than upon a factual contingency.
Congress may delegate authority to make rules concerning matters of internal administration. This court should abandon the intelligible principle doctrine and adopt the fact finding approach recognizing the Constitution bars any divesting of its powers.
33 Board of Trustees v The Commonwealth of Kentucky Supreme Court of Kentucky No. 2002-SC-0699-DG (2003)
34 Whitman v American Trucking 531 U.S 457 (2001).
35 In Re Certified Question citing People v Tanner 496 Mich 199 (2014)
36 Out of the Separation of Powers Frying Pan 37 Gundy
38 Wayman v Southard 10 Wheat 1 (1825)
Strictly speaking, there is no acceptable delegation of legislative power40. The nondelegation doctrine has been presented as a judicial doctrine, not a constitutional provision41. The nondelegation doctrine requires a new approach42.
The Michigan Constitution is an instrument of delegation. In its words “We, the people of the state of Michigan, grateful to Almighty God for the blessings of freedom” provides that “All political power is inherent in the people.”
The Michigan Constitution does not speak in terms of delegation and nondelegation. Instead it vests its powers.
Article VI Section 1 of the Michigan Constitution delegates from the people “legislative power… vested” in a senate and a house of representatives.
When there is a pure delegation of legislative power it “is irrelevant whether the standards are adequate”.43 They are “not standards related to the exercise of executive or judicial powers; they are, plainly and simply, standards for further legislation”.44
It is necessary to flesh out the concept of the “legislative power” that the Constitution vests in Congress. The “essence of the legislative authority is to enact laws, or in other words, to prescribe rules for the regulation of society.”45 Legislative power “prescribes the rules by which the duties and rights of every citizen are to be regulated”46
A law is a “rule of conduct imposed by authority”47
Legislative Power does not refer to the authority to vote on legislation, but rather the power to make general rules governing private conduct that carry the force of law48. A law is a rule enforcing some duty or prohibiting some act49
A legislative act that prescribes no rules of conduct for society, but instead empowers another entity to do so, is not only invalid-it is not a law50.
The legislature may not pass an act which is not a law in itself when passed, and has no force or authority as such, and is not to become or be a law, until it shall have been created and established by the will and act of some other person or body51.
A law must be complete in itself, in all of its terms and provisions when it leaves the legislative branch of government, so that by appropriate judicial review and control any action taken pursuant to such delegated authority may be kept within the defined limits of the authority conferred and within the express and implied limitations of all controlling provisions and principles of dominant law, and it is not left to an administrative authority to decide what should and what should not be deemed infringement of the law52.
The Legislature may not delegate the power to enact a law or to declare what the law shall be; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definitive valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose53.
When the statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be54.
In 1854, less than twenty years after Michigan adopted its first Constitution in 1835, the Michigan Supreme Court determined that a valid and subsistent law of the state under the constitution, must have been fully enacted by the legislature, so that when it came from the hands of the executive it was in virtue of its own provisions an absolute act otherwise it cannot be a valid law55.
Legislative power is the power of prescribing rules of civil conduct. Laws are complete and positive in themselves when they pass from the legislature, and are not to become laws by the creative power of other persons.
Congress cannot divest itself of the powers that the Constitution vests in it. A delegated power is one that can be resumed at the will or discretion of the delegator56.
The legislature cannot transfer the power of making laws to any other hands; for it being a delegated power from the people, they, who have it, cannot pass it over to others57.
The dissolution of government was, of course, the opportunity for revolution, and Locke’s first example of this situation was when laws are made by persons who are not appointed as lawmakers by the people.
When, by means of the Constitution, the people established their legislature, the legislature had no authority to alter their constitution and therefore could not delegate its power.
As an agent of the public, Congress is prohibited from delegating powers granted to it. The nondelegation doctrine was developed out of an elementary maxim of the law of agency, delegata potestas non potest delagari-delegated powers cannot be further delegated58.
40 In Re Certified Question Michigan Supreme Court Docket No. 161492
41 Nondelegation Blues 91 George Washington Law Review (forthcoming 2023)
42 Delegating or Divesting Columbia Law School 2021
43 Mistratta v United States 488 US v 361 (1989) Scalia dissenting
45 Federalist 75 Alexander Hamilton
46 Federalist 78 Hamilton
47 Oxford English Dictionary
48 Nondelegation New York University Journal of Law & Liberty 2019
52 Connor v Hatton 216 So.2d 209 (1968)
54 BH v State 645 So. 2d 987 (Fla. 1994)
55 People v Collins 3 Mich 343 (1854)
56 Amicus Curiae Brief New Civil Liberties Alliance Gundy
57 John Locke, Two Treatises of Government (1690).
58 Nondelegation and the Unitary Executive 12 University of Pennsylvania 251 (2010)
59 The University of Chicago Law Review 2020
In 2020, the U.S. Supreme Court interpreted a statutory provision that permitted the director of an agency to exercise the removal power of the President. The Supreme Court would have none of it and invalidated the statutory provision on the grounds of a violation of the separation of powers.60
The agency lived to fight another day since it is still on the ropes because the decision simultaneously exacerbated a second constitutional defect. By divesting itself of legislative power Congress crossed a forbidden line. The unprecedented delegation creates an unchecked, self- sustaining island-cut off from the constitutional mainland.
Congress had thus surrendered its power to the agency instrumental to Congress’s ability to rein in executive excesses. Delegating control is unquestionably a divestment of legislative power. Congress tied the hands of every future congress. This is no mere “delegation” of power, a misleading term that implies the unilateral ability for Congress to reverse its grant of authority; this is an outright divestment of power.
It is nonetheless a bargain that the Supreme Court must unwind because it unconstitutionally divests legislative power. As the Supreme Court emphasized in finding a separation of powers violation, perhaps the most telling indication of a “severe constitutional problem” with an executive entity is a lack of historical precedent to support it.
Having rescued the agency from the separation of powers frying pan, the Court has dropped it into a nondelegation fire that is anathema to the constitutional order of government. Unless the Court take up its unfinished business soon to resolve this untenable situation, the agency will slip from the legislature’s control and thus from that of the people.
It is constitutionally suspect. Congress may not subdelegate any its power.
The people’s initial delegation of power to the legislature does not provide that the legislature could subdelegate such powers. The laws forbid the abandonment of legislative responsibility to a transfer of their powers into other hands without consulting the people61.
One of the problems with the nondelegation doctrine is that courts are not capable of articulating a coherent and consistent nondelegation doctrine62.
This court should abandon the term delegation and recognize that the Constitution bars any divesting of its powers. Delegation is of dubious and disputed authority, it permits what is says it forbids, and it does not help the judges sort out their cases63.
60 Seila v Consumer Financial Protection Bureau 591 U.S.______(2002)
61 Thomas Jefferson 1788 Notes on the State of Virginia 135 University of North Carolina 2006
62 New York University Law Review 1239 (1989).
63 Nondelegation Blues 64 Philip Hamburger Columbia Law School 2014
On Friday October 2, 2020, the Michigan Supreme Court struck down the emergency powers of the governor as a violation of the Michigan Constitution’s strict separation of powers.
On Monday October 5, 2020 the Governor pivoted to the Michigan Public Health Code.
On November 15, 2020, the opening day of deer season, the Department of Health and Human Services (MDHHS) issued an “emergency order” under MCL 333.2253 closing indoor dining at Michigan restaurants.
On November 25, 2020, the Iron Pig restaurant in Gaylord Michigan allowed the indoor “gathering of people”.
Without notice or a hearing, representatives of the Michigan Liquor Control Commission (MLCC) walked into the Iron Pig and took the liquor license off the wall. The liquor license was immediately suspended.
The liquor license was suspended for 90 days, the longest suspension for any restaurant in Michigan, for not complying with the MDHHS emergency order.
The Administrative Law Judge stated:
The Licensee’s slogan, “RISK IT FOR THE BRISKET-BBQ WITH A SIDE OF FREEDOM” rhymes but downplays the incredibly serious nature of the COVID-19 virus. Unfortunately, a more appropriate slogan might “Brisket to die for”
No one died at the Iron Pig.
The MLCC found that the Iron Pig engaged in “illegal acts” in disregarding the MDHHS emergency order and is an “imminent threat” to the public’s health, safety and welfare.
The Michigan Department of Agriculture and Rural Development (MDARD) then suspended the food license of the Iron Pig. MDARD found that disregarding the MDHHS emergency order is a “condition” at the Iron Pig that is an “imminent or substantial hazard”.
MDARD then filed suit against the Iron Pig in the Ingham County Circuit Court and obtained an ex parte Temporary Restraining Order to shutter the restaurant. MDARD sent an “undercover employee” with a hidden video camera to the Iron Pig.
The Iron Pig owner was held in contempt of court and fined.
The Michigan Department of Health and Human Services (MDHHS) filed a motion for summary disposition requesting a ruling that that the Iron Pig violated the emergency order.
An Administrative Law Judge entered an Order finding that the MDHHS emergency order was issued and in effect at all relevant times, with “nothing to suggest that it was invalid”.
The entire legal foundation of the foregoing proceedings was the MDHHS emergency order.
Judge Hunter found the MDHHS emergency order was in violation of the nondelegation doctrine and the Michigan Constitution’s strict separation of powers. MCL 333.2253 is severed from the Michigan Public Health Code. Under the circuit court’s ruling, “the DHHS can no longer rely on MCL 333.2253”.65
60 Seila v Consumer Financial Protection Bureau 591 U.S.______(2002)
61 Thomas Jefferson 1788 Notes on the State of Virginia 135 University of North Carolina 2006
62 New York University Law Review 1239 (1989).
63 Nondelegation Blues
64 Philip Hamburger Columbia Law School 2014
65 Michigan Supreme Court Order April 1, 2022.
66 David Schoenbrod 1993 Yale University
A statute that says “Do not emit more than x ponds of pollutant y” does not delegate, because it lays down a rule.
However, a statute that says “do not emit unreasonable amounts of pollution” does delegate, unless somehow our customs give the word unreasonable a clear meaning in this context.
To become a law, bills receive a majority in the House and Senate and approval by the President or should the president veto a bill, two-thirds majorities in the House and Senate. The Framers, therefore instead of writing into the Constitution a direct prohibition of regulation for private purposes, they sought to discourage such regulation by making it difficult to enact laws that lacked broad public support.
When the lawmakers we elect have others make the law, the people lose.
66 David Schoenbrod 1993 Yale University
In his first inaugural address, Franklin D. Roosevelt compared the impact of the ongoing economic depression to a foreign invasion, arguing that Congress should grant him sweeping powers to fight it. In 1933 he got Congress to pass two statutes designed to raise depressed prices. The statutes handed a few officials concentrated power to move rapidly toward a “New Deal”.68
In 1935, the U.S. Supreme Court, however, began striking a number of these statutes as a violation of the nondelegation doctrine in a variety of cases, among them Panama Refining and Schecter Poultry.69
President Roosevelt responded with his famous threat to greatly expand the number of Supreme Court associate justices so that he then could “pack the court” and gain judicial acceptance his New Deal reforms. Although Congress failed to expand the Court as Roosevelt wanted, the threat nonetheless succeeded in a manner. The Court suddenly began approving New Deal legislation either expressly or by refusing to hear cases upholding the new laws70.
Americans must live under a dual system of government-one part established by the Constitution and another circumventing it71.
The Constitution permits only the legislative branch to make law. The executive branch can enforce the law, but cannot create its own.
Article IV Section 51 of the Michigan Constitution provides that the “legislature shall pass suitable laws for the protection and promotion of the public health.”
Rather than speak of administrative law, we should speak of administrative power-indeed of absolute power or more concretely of extra-legal, supra-legal, and consolidated power72.
The Constitution prohibits Congress from giving the executive branch carte blanche to write laws. The Constitution does not endorse this “extraconstitutional” arrangement. Gundy
The opportunity to devolve legislative power to administrative agencies invites congressional irresponsibility. Congress can escape accountability for regulatory policy and is therefore free to behave irresponsibly. These agencies make law without any fear of being held to account in an election.
When an executive agency issues a rule constraining Americans-it is an attempt to exercise binding legislative power not through an act of Congress, but through an administrative edict. Similarly, when an executive agency adjudicates a violation of one of these edicts-in order to impose a fine or suspend a license-it is an attempt to exercise judicial power, not through a judicial act, but through an administrative act73.
A defense of administrative power is that Congress uses statutes to delegate its lawmaking power to administrative agencies. The Constitution expressly bars the delegation of legislative power.
An executive branch agency adopts “emergency orders” then exercises the power to investigate, adjudicate and punish without consulting the people’s representatives74.
The transfer of legislative power to unelected bureaucrats deprives Americans of their sense of connection to government75.
Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution. Administrative courts substitute inquisitorial process for the due process of law. Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.
67 Boston University School of Law 1994
68 Power Without Responsibility
69 Panama Refining Co. v Ryan 293 U.S. 388 (1935); A.L.A. Schecter Poultry Corp v United States 295 U.S. 495 (1935).
70 BH v State SO. 2d 987 (DFLA. 1994)
71 The Administrative Threat
72 Imprimis A publication of Hillsdale College September 2014
73 Imprimis A publication of Hillsdale College September 2014
74 Out of the Separation of Powers Frying Pan
75 Nondelegation Blues
76 Federalist No. 78 Hamilton.
“[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny” 46th Circuit Trial Court v Crawford Co, 476 Mich 131 (2002), “[w]hen the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty”. Baron de Montesquieu, The Spirit of the Laws; James Madison
The Framers gave the judiciary the exclusive power to interpret the Constitution and the laws passed by Congress, so if one of the other branches began to move outside its constitutionally defined territory, the courts would be able to step in and stop it.
The courts cannot endorse this “extraconstitutional arrangement”. Gundy
It is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as “faithful guardians of the Constitution” if either Congress or the executive branch were to violate or subvert the Constitution’s provisions76.
76 Federalist No. 78 Hamilton.