The Obama Administration, as part of the rule-making process mandated by the 2010 Health Care Law, has decreed that all persons and institutions must pay for certain reproductive services, their moral and religious objections notwithstanding. By the same authority, he then modified the decree.
But the law’s text neither mandates nor defines such services nor touches the meaning of the Constitutionally protected “free exercise” of religion. Nor have we any way of knowing how many other decrees any Administration may produce while writing the 1039 rules that this law mandates. Former House Speaker Nancy Pelosi turned out to be correct: we would not know what the law said until after it passed. Perhaps long after, because that meaning will evolve according to the humors of administrators.
We can hope that the disparity between the law’s inoffensive language and a decree that roils personal morals and constitutional law may lead the Supreme Court to reconsider to what extent modern legislation empowers administrators to make new laws, and thus to rule by decree.
Laws such as Obamacare, which consist so largely of open-ended grants of authority, virtually invite Administrations to issue rules that make new laws under the guise of executing existing ones. Once upon a time, the courts ruled that this sort of thing is the very negation of law.
Under President Franklin Delano Roosevelt, the 1933 National Industrial Recovery Act constituted boards to regulate various parts of the economy. They set prices and working conditions for everything from poultry to pants, and ended up fining a tailor for pressing pants for 35 cents instead of 40 cents, and a producer of kosher chickens of selling too cheap.
In 1935, in Schechter Poultry Corp. v. United States, the Supreme Court unanimously struck down the NIRA because Congress could not give legal force to rules it had not passed. Congress cannot create new legislators because it cannot delegate its Constitutional power to legislate. The basis for that decision, “res delegata non deleganda est” (delegated powers are not to be delegated further) is still taught in the law schools and is in fact the basis of standard civics. Laws are made by our elected legislators, executed by our elected Presidents and Governors and enforced by impartial judges who may penalize us for transgressions only by unanimous consent of a jury of our peers.
Yet today, standard civics is mostly irrelevant because the courts have gone along with Congress’ relaxation of the principle of non-delegation. Today, we live less by laws than by decrees conceived, enforced, and adjudicated by so-called “independent agencies” such as the Environmental Protection Agency. The civics books call them “quasi-legislative, quasi-executive, quasi-judicial.”
For ordinary citizens, “quasi” means “the decrees and the decreers are beyond your reach.” The justification for this, and hence for pretending that the modern administrative state can coexist with the rule of law, is that the rules made under the authority of any law may only fill in the law’s interstices.
But now, since laws consist largely of mandates for rule-making that translate legal generalities into what the bureaucrats and their interest group allies want, Lady Law is no longer blindfolded holding balanced scales. Since now she must weight the rules in exquisite detail, Lady Law’s eyes have to fix sharply on the scales she is fixing.
It’s no wonder that we are learning to treat her more as the tramp she is than as the lady she was.
By passing a law that delegates legislative powers, Congress can also contradict existing law and even negate the premises on which the law itself was passed. The 2010 Health Care law, its silence on abortion notwithstanding, empowers a rule that defines medical insurance as covering also abortifacient drugs and uses money taken from the general public by forced enrollment in medical insurance to pay for such insurance.
Thus using public money partially overturns the Hyde amendment, a longstanding prohibition of public funding for abortion. Moreover, it contradicts the Health Care Law’s legislative history, namely the promise made to Congressman Bart Stupak’s pro-life Democrats that the law would not be a vehicle for promoting abortion.
Of course if either Stupak’s group or the Administration had been serious about such a promise, why not have written it into the law rather than trust that rule-makers – unelected legislators – would abide by it? In short, the delegation of legislative power turned out to be a ruse for achieving by decree what could not be achieved by honest legislation.
While the substance of the ruse is not justiciable, the use of laws as screens for executive power not bound to law and even contrary to law should remind the Justices of the reason why non-delegation has been a principle of law for 2,000 years, why they learned it in law school, and why it might be a good idea to steer the ship America back in its direction.
Angelo M. Codevilla is Professor Emeritus at Boston University.