Legal Commentary

My inspiration for this question is George Will's column denouncing the Emergency Economic Stabilization Act as an excessively broad delegation of power to the Secretary of the Treasury to spend federal dollars. Quoting Gary Lawson and Jeff Rosen, Will repeats the old saw that turning over a blank check to an executive official to spend money as that official pleases violates Article I, section 1's assignment of "legislative" powers exclusively to the Congress.

I do not want to discuss the objective merits of the doctrine (although, to put my own ideological priors on the table, I think that the doctrine is silly). Instead, I am curious about why any good conservative would endorse the doctrine, especially as applied to executive officials controlled by the President and especially as applied to federal money. It seems to me that George Will's column and the argument that he presses flies in the face of at least three principles of conservatism: (a) textualism, (b) flexibility in spending, and (c) Presidentialism.

First, are not we conservatives supposed to care about limiting judicial review as closely as possible to the enforcement of plain constitutional text? The non-delegation is the smokiest of penumbras, inferring that somehow broad power to make policy is "legislative" power without anywhere identifying the textual basis for this strange equation. As Vermeule and Posner pointed out in Interring the Non-Delegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002), the textual basis for this inference is weak: "Legislative" power might simply be power resulting from any legislation. Just so long as Congress can retract its grant of statutory authority, it has not delegated anything "legislative" to the Secretary of the Treasury. In short, the non-delegation doctrine is the Roe v. Wade of separation of powers doctrine, having only the loosest mooring in text.

Second, are not we conservatives against micro-managing policy through centralized and hard-to-change directives? Conservatives, after all, are the ones who championed block grants against categorical grants during the 1970s, arguing that rigid statutory definition of spending priorities led to bad policy-making. If a block grant to the states is okay, then block grants to the Secretary of the Treasury are equally acceptable, right? When Will denounces TANF, then I'll take seriously the denunciation of EESA.

Finally, I thought that conservatives liked Presidential power. Whatever happened to a robust definition of Article II?

I do not mean to suggest that Will is denouncing EESA only because it gives power to a Democratic Administration. The problem is actually worse than Will's being unprincipled: He has confused principles. Will and other conservatives are confusing their policy priors with their constitutional and interpretative priors. Conservatives like limited government, and they think that the non-delegation doctrine will get them to this goal. But the doctrine flies in the face of their constitutional commitments to a robust executive and textualism and their policy commitment to re-inventing government to be less shackled by centralized red tape.