The Best Gift for America’s 250th Birthday — a Revitalized Nondelegation Doctrine
This July 4th, the United States will celebrate its 250th birthday. Out of the many reasons Americans owe gratitude to our Founding Fathers, the Constitution is at the top of the list. Shamefully, one constitutional principle that has been left dusty, neglected and misunderstood for the last century is the nondelegation doctrine.
Nondelegation is as simple as it sounds—one branch of government may not delegate its core constitutional duty to another branch. This term, the New Civil Liberties Alliance and the law firm Clement & Murphy are petitioning the Supreme Court in Choice Refrigerants v. EPA to rectify the wrongs against one of the greatest protectors of liberty — a truly tripartite system of government.
In 2020, Congress passed the American Innovation and Manufacturing Act, otherwise known as the AIM Act. The purpose of the act is to phase down products known as hydrofluorocarbons (HFCs) — compounds used in refrigerators, air conditioners and other cooling systems. Under the act, those who deal in the HFC industry must use “allowances” — essentially permission slips — to continue to manufacture or import HFCs. What is problematic about the act is that it tells the Environmental Protection Agency what to do with 2 percent of the market and gives the EPA complete control of the other 98 percent with no parameters.
So, what do unelected bureaucrats with no rules do? EPA doled out allowances with social justice policies attached, such as giving allowances to traditionally “socially and economically disadvantaged individuals,” and prioritized new market entrants over those with longstanding market share. EPA, through Congress’s sloppy drafting of the AIM Act, is running a dictatorship over a $2.55 billion industry by handpicking winners and losers.
The EPA’s unbridled, unconstitutional power is choking the current industry players who need allowances to continue to operate, and the agency is using its power to control market share based on its own erratic preferences.
The Constitution is at odds with the EPA’s legislation. In fact, Article I, Section I of the Constitution states, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Not “some,” not “part of the time,” but all. As Supreme Court Justice Clarence Thomas has written, this legislative power “means the power to make substantive rules setting the conditions for deprivations of life, liberty or property.”
The Founding Fathers made it difficult — on purpose — to pass laws. There’s a reason congressmen must garner the support of their constituents through an election process. If a congressman is on the wrong side of too many bills, his congressional career may be short-lived.
Conversely, EPA bureaucrats are accountable to no one and are not removable by the people they harm. To preserve a truly tripartite government as our Constitution declares, nondelegation needs to be brought back to life, and only the Supreme Court can dust it off and reclaim its respect. Until now, the nondelegation cases seeking a Supreme Court hearing have been clouded by competing issues, but Choice Refrigerants v. EPA provides a clear vehicle for assessing and resuscitating the core constitutional principle.
The Founding Fathers were acutely aware of how quickly rights evaporated when one all-powerful entity acts as judge, jury and executioner. According to the Constitution, judges cannot evade their duty to say what the law is and let executive branch agencies make that critical determination. And unelected, unaccountable agency officials cannot reorder multibillion-dollar industries through legislation. Each branch has a unique and specific duty that is critical in maintaining a separation of powers.
For nearly a century, courts, including the Supreme Court, have stood idly while the “intelligible principle” test that has come to govern the nondelegation doctrine wreaked havoc on the idea of a true separation of powers. Passing constitutional muster is laughable, as Congress has been allowed to draft sloppy, Swiss cheese-like statutes. Decades of compounding bad court decisions and even worse statutes have led the court to this day — the day to give America a true birthday gift and take up the case of Choice Refrigerants v. EPA.
As we celebrate two and a half centuries of freedom, let us not forget that freedom is embodied in an accountable government.
