Friday, December 6, 2019

The Delegation to the President

The Trump administration’s issuance of new regulations that will “cause hundreds of thousands of people to lose access to the Supplemental Nutrition Assistance Program” [1] has raised legitimate concerns about the humanity of the action, but, surprisingly, little objection to the system that has allowed it. How is it, we should be asking, that the President is empowered to enact something with such broad implications without any input from Congress?

This is a symptom of the regulatory mode of governance that we have all gotten used to: Congress passing legislation with, essentially, blanks to be filled in by the Executive. But if you handed the ordinary reasonable person a copy of the Constitution for his perusal, he would likely be amazed that it has been interpreted to allow the President such sweeping legislative authority.
NBC reports that the “USDA rule change affects people between the ages of 18 and 49 who are childless and not disabled. Under current rules, this group is required to work at least 20 hours a week for more than three months over a 36-month period to qualify for food stamps, but states have been able to create waivers for areas that face high unemployment.” But the “new rule would limit states from waiving those standards, instead restricting their use to those areas that have a 6 percent unemployment rate or higher.” This is clearly legislative matter which has been unilaterally enacted by the President.

The Supreme Court, however, has historically gone along with this sort of thing. The rule is “that Congress can not delegate its power to make laws to an executive department or to an administrative officer, nor confer upon any such officer or the courts the power to determine what the rule of law shall be.” [2] On the other hand, so long as Congress lays “‘down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’” [3] This rationale is “driven by 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.”

Superficially, that appears to make sense. But what can happen is that a change in administration can result in sweeping changes without any Congressional input at all. The USDA itself says that about 688,000 people will lose access to SNAP benefits under the new rules. An impact of that magnitude should involve the deliberation of the legislative power rather than being implemented by executive fiat. The high Court should revisit its doctrine permitting such broad delegation of legislative authority to the President.