Guest Essayist: Joe Postell

Can Congress give away its legislative powers to other branches of government, including administrative agencies?  In the case of Field v. Clark, the Supreme Court decisively said “no,” laying down a precedent that stands against much of what our government does today.

The McKinley Tariff Act of 1890, which gave rise to this case, gave the President of the United States the power to suspend duty-free status in sugar, molasses, coffee, tea, and hides when he determined that a country producing and importing those items into the United States had imposed “reciprocally unequal or unreasonable” tariffs on American goods.  When the President suspended these items’ duty-free status, taxes had to be paid by companies bringing these goods into the country.

Importers of these goods such as Marshall Field & Co. sued to recover the taxes they paid, on the grounds that the law had unconstitutionally delegated Congress’s legislative powers to the President.  They argued that giving the President the power to suspend the law was equivalent to giving the President the power to make the law, and the power of making law was specifically vested in Congress, the elected representatives of the people.  The law was therefore illegitimate, they argued, and so the taxes were unlawfully collected.

Although the Supreme Court ruled against Marshall Field, it unequivocally affirmed the importance of the “nondelegation doctrine,” which forbids Congress giving away its powers to other branches.  It proclaimed,

“That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

If Congress were to give its legislative powers to the executive, then our representatives would no longer be the lawmakers, and we would be subjected to the rules of an unelected bureaucracy that is less accountable to us than our own elected legislature.

The reason the Court refused to strike down this aspect of the McKinley Tariff Act was that it gave the President only the power to declare a fact that would trigger suspension of the law, not the power to write the law himself.  In the Court’s words, “Congress itself prescribed, in advance, the duties to be levied, collected and paid,” and merely gave the President the power to trigger those provisions of the law by finding that another country was refusing to engage in free trade with us.  Congress made the law, and the President merely decided when it would go into effect.

Scholars on the nondelegation doctrine dispute whether giving the President this power to find facts that trigger legal outcomes is equivalent to delegating legislative power.  One could argue that every law gives this power to executive officials.  Take the simple example of speeding: the law says that drivers shall not exceed a certain speed, and leaves it to the executive—the police—to find the fact by determining that a person has exceeded the speed limit.

But this dispute is far less important than the real message of Field v. Clark: that Congress may not, under the Constitution, transfer its powers to unelected administrative officers, including the President.  If this principle were followed more faithfully today, it would call much of modern American government into question.

Today, administrative agencies routinely make rules that have the force of law.  (They also routinely investigate, prosecute, adjudicate, and enforce those rules, serving as lawmaker, investigator, prosecutor, judge, jury, and executioner.)  Congress’s laws are typically vague and open-ended, leaving to administrative agencies the ability to engage in rulemaking to fill in the details.  Our Congress passes laws so that we can find out what is in them later from the bureaucrats.

This threatens the very republic that our Constitution’s Founders worked so diligently to establish, and many generations thereafter preserved for their posterity.  The core principle of republican government is that our own elected representatives make the law, and Field v. Clark is a case which affirms this basic principle of republicanism.

Field v. Clark (1892) Supreme Court decision:

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of the forthcoming book Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.

5 replies
  1. Barb Zack
    Barb Zack says:

    And yet here we are today, with a near useless Congress (who represents the people), and a near omnipotent and overbearing government that intrudes in nearly every aspect of our lives. How do we, the People, get that power back? or are we truly at the point of no return?

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    Barb, I agree with your points and likewise concerned that we have crossed a Constitutional Rubicon.

    I wonder too that Congress has become ineffectual because they have made themselves irrelevant by transferring their legislative powers to the administrative agencies bought buy lobbyists. It is also a lot easier to add voluminous laws [size and copious] to the books when you can assign the task to someone to fill in the details. It is also invites our law makers to become ignorant and lazy in determining which laws are really needed.

    The insidious rise of the administrative state was documented in last years essays with sobering effect. Thank you for choosing this essay to make us more aware of perilous trend.

    “Will they not go astray who devise evil? But kindness and truth will be to those who devise good.” Solomon


  3. Publius Senex Dassault
    Publius Senex Dassault says:

    The other reason, and this one is the most disconcerting of all, some people in the Legislative branch are willing to transition their responsibility and power to bureaucracies is to institutionalize they world view into the an administrative state so the people cannot see it, monitor it, change it, control it, … It is simply a way to overthrow, replace one Government with another government in the most silent, bloodless, cloaked coup of all time. Leave a shell of the original in place while the real one runs in the background.

    This is a common theory of many computer worms and Trojan horse viruses. Let the computer run, but use some, or most of its memory and power for the hacker’s use and pleasure. People do not realize it, but most “Door Close” buttons on elevators are not even hooked up. They are there to give people the illusion of control and a sense that they sped up their journey.

    I hope that has not happened already, but why should America be immune to the perverse political machinations that have plagued other countries? When House Rep and Senators openly and joyfully proclaim they do not know what is in the bill they will pass, but we will know once its passed [i.e., the administrative state and bureaucracies right the regulations and law]. I really hate this conspiracy stuff. But the Founders were very concerned about dictators, tyrants, loss of privacy, and government acting outside the will of the people. My guess is that they would view my feeling a bit paranoid as being too timid and willingly blind to reality.


  4. Ron
    Ron says:

    Has the ruling in this case been negated by another subsequent case? If not, then why can’t President Trump invoke this principle to turn back the clock on administrative agency legislative actions?


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