The Articles of the U.S. Constitution list certain enumerated powers as belonging to different branches of our government. For the first 100 years or so of our country’s history, we not only blocked branches from reaching in to coopt the powers of the other two, but we barred the voluntary delegation of powers across branch lines. This “Non-Delegation Doctrine” was sacrosanct for many years, but slowly began to dissolve as Congress in particular faced the growing workload of administering the work of an entire nation.
Today, the Non-Delegation Doctrine (NDD) is mostly a footnote of Constitutional Legal history. But it has left one staggering legacy that may prove the savior of our battle weary republic over the coming months. And thanks to the Court of International Trade (COIT) and its recent opinion on the Presidential use of the Tariff power, the NDD may be the belle of the ball again very soon.
In Federalist No. 48, as quoted in the Court of International Trade’s recent opinion, James Madison stated that “the powers properly belonging to one of the departments [branches] ought not to be directly and completely administered by either of the other departments.” This is the underlying logic of what remains of the Non-Delegation Doctrine. A power delegated to one branch of government, such as tariffs to congress, if entirely controlled in a some situation by a different branch of government, like the President, ceases to belong to the originally delegated branch. This would violate the letter and spirit of the very first compact upon which our republic stands.
As I explain in the attached video above, when a power is delegated across branch lines, it must be tightly restricted, and any interpretation of such a delegation must be performed by the narrowest means possible. Any other interpretation allows the delegee to decide for themselves where the limits of the power lie, and removes from the original holder, the control over that power.
Donald Trump and his team appear to have spent several years identifying useful congressional powers, delegated to the executive with ambiguous language, in an attempt to take advantage of that ambiguity wherever possible. The use of executive orders that apply imprecise definitions to words like “war,” “terrorist,” “invasion,” and “emergency,” to invoke powers delegated by congress for narrow and precise situations, is inherently incompatible with our constitution, the separation of powers, and most of all, the Non-Delegation Doctrine.
With its decision last week, however, the Court of International Trade may have finally demanded some precision from the administration. The use of congress’ tariff power has been delegated to the executive to solve incredibly specific problems with narrowly applied solutions requiring extensive procedural adherence. This administration took its loaned power to impose tariffs up to 15 % for trade imbalances, and it’s loaned power to impose higher tariffs in an emergency, and attempted to combine them. The Court overturned Trump’s attempt to impose 50% and higher tariffs for trade imbalances, calling it a trade emergency. Trade imbalances, said the court, have their own law for a reason, are expected, and are not an emergency. Requiring precision out of an administration that thrives on flouting adherence to the law could be the beginning of a turning point for the court.
It seems to have taken the court system a few months to get their footing, but whether this latest decision by the COIT stands or not, the playbook of demanding strict and narrow adherence to congressional delegations of power in compliance with the NDD and separation of powers will hopefully begin a broader awakening by the court. It is key that to the survival of our republic that the president not be allowed free exercise of those powers enumerated in Article I. The President must be restricted to use of his own power, and his own broad interpretations of those delegated to him must be stopped immediately. The Non-Delegation Doctrine may be just the spaghetti strainer we need.
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