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To rectify the concerns regarding the constitutionality of the jurisprudence handed down in the field while simultaneously protecting the beneficial commercial nature of these DCC decisions, Members of Congress simply should institute a legislative version of the DCC as part of any statute they consider that deals with Commerce Clause interpretation. By implementing a statutory version of the DCC, Congress would help to legitimize the Supreme Court's jurisprudence in this field and acknowledge the importance of the DCC in guaranteeing commercial harmony throughout the union.
In effect, Congress would be saying that the country's ir.temal lanes of trade should be free and unfettered of protectionist or discriminatory regulations. Professor DeBow, who has developed such a legislative solution to accomplish chis objective, concludes that:
Congress should curtail and strictly limit the powers of cabinet departments and independent regulatory agencies to preempt state and local governments. Executive branch cabinet agencies and independent regulatory agencies have amassed a discurbing amount of power. So long as federal agencies and officials enjoy the broad discretionary powers that are reserved under the Constitution to the elected lawmakers of the legislative branch, they will continue to ignore or flour federalism statutes and protections.
This should not be surprising; regulators exist to regulate. They cannot be expected either to surrender power voluntarily or to stop imposing expensive, preemplive rules because it would not be in their best interest to do so. Nor should anyone mistake who is to blame for such activity: If Congress had not delegated broad discretionary powers to these agencies in the first place, and if it would start to take back the authority that it delegated unconstitutionally in the past, then the power of federal regulatory agencies and administrative offices would be strictly curtailed and diminished.
Unfortunately, from the time of the New Deal, Congress has justified such delegation as allowing for more scientific lawmaking by administrative experts. Granuing regulators rulemaking authority was seen as a way to conserve valuable time for Congress to debate the heart of the issues, leaving executive branch agencies to fill in the fine print. Although the Supreme Court struck down earlier efforts by Congress to delegate authority to these agencies, 32 the judicial branch eventually joined a
Congress should legislate a version of the DCC in order to guard against Interstate trade wars, while simultaneously eliminating the uncertainty caused by some aspects of current DCC doctrine.... A codification of the DCC should require simply that state laws not discriminate against out-of-state businesses. Congress clearly has the authority to enact such language under the current understanding of its commerce power, and it seems likely that Congress would have the authority to do so'even under the original understanding of the Commerce Clause or, perhaps, the Privileges and Immunities Clause.
31. Ibid., pp. 78–79.
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silent conspiracy to undermine the Constitution and accepted the agencies' racionales for delegation.
Constitutional scholars have found these justifications for delegation wholly deficient. 34 The foremost criticism is that delegation conflicts with the Constitution. The language of Article 1, Section 1, is clear. "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." Nowhere does the Constitution allow for the exercise of lawmaking powers or functions by non-elected executive branch administrators and bureaucrats
alphabet soup of government agencies and an overwhelming regulatory burden that undermines the very idea of representative
government. 35 This led Cato Institute scholars David Schoenbrod and Jerry Taylor to refer to the practice of delegation as the corrosive agent of democracy and to argue that "delegation does not help secure good government'; it helps destroy it."
Delegation also violates the principle of separation of powers among the branches of government. It cannot be regarded as a better method of serving the public because it represents a system of governance that is both uriaccountable and undemocratic. As Senator Sam Brownback (R-KS) noies:
(Plerhaps the most pernicious aspect of delegation is that voters can no longer hold government accountable. Originally designed to be the most accountable branch of government, Congress has grown increasingly irresponsible. The fundamental link between voter and lawmaker has been severed. A handful of broadly written laws has spawned a virtual
Congressional action to end the unconstitutional practice of delegating authority to administrative agencies would have important implications for federalism. Such a bold move would minimize the preemptive powers of the federal government and hold elected Members of Congress accountable for their actions. With Congress no longer able to blame regulatory agencies and administrators for government overreach, Washington's ability to interfere in stale and local matters would be greatly diminished.
Legislation was considered in the 105ch Congress that would have advanced this antidelegacion agenda. The Congressional Responsibility Act of 1997. introduced in the Senate (S. 433) by Senator Brownback and in the House (H.R. 1036) by Representative J. D. Hayworth (R-AZ), gamered wide bipartisan support but was not passed by either house. Li implemented, anti-delegation efforts like the CRA
32. See, in particular, ALA. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
moment in the history of and-delegátion, because from thar case forward the Coun legitimized and accepled congressional efforts to delegate power to administrative bodies. Prior to ]. W. Hampton, the Count had held firmly to a doctrine of non
delegation of congressional authority to administrative agencies. 34. Theodore Lowi has done pioneering work in this field. See Theodore J. Lowi, “Liberal Jurisprudence: Policy Without Law."
The End of Liberalism: The Second Republic of the United States (New York, NY: W. W. Norton & Company, 1969, 1979), pp. 92–126. More recency, a study by New York Law School professor David Schoenbrod has been instrumental in calling attention to the deficiencies of delegation. See David Schoenbrod, Power Without Responsibility: How Congress Abuses the
People Through Delegation (New Haven, CT: Yale University Press, 1993). 35. Senator Sam Brownback, prepared statement on the Congressional Responsibility Act of 1997, presented before the Sub
committee on Commercial and Administrative Laws Committee on the Judiciary, U.S. House of Representatives, September
25, 1997; available on the Internet at hetp://www.house.gov/judiciary/5128.htm. 36. David Schoenbrod and Jerry Taylor, "The Delegation of Legislative Powers," Caro Handbook for Congress, 105ch Congress
(Washington, DC: Cato Institute, 1997), p. 47.
January 27, 1999
Certain federalism reforms will require more ume, consideration, and debate than those listed above; they should be considered as long-term agenda items. The three reforms tha: follow should be discussed in Congress, even though it is unrealistic to expect action on these items in the current session. Strategy #5: Congress should give the states
the ability to propose amendments to the Constitution on their own, without having to call for a constitutional convention. This reform would rectify the imbalance between the states and the federal government regarding how amendments to the Constitution are proposed.
Article V of the Constitution allows Members of Congress to propose amendments to the Constitution in much the same way they introduce bills. But under Article V, the states can introduce amendments to ine Constitution only by convening a formal constitutional convention. Perhaps the Founders thought this would be easy enough for the states to do; but over time, the states have come to view the convening of a constitutional convention as a radical step that might open the door to more harm than good. Therefore, states appear reluctant and unable to muster the support needed to call such a convention. Thus, the states rely largely on Congress to introduce constitutional amendments.
This constitutional imbalance could be easily remedied if the states simply were given the ability
to propose amendments to the Constitution without having to call a formal convention. The states could, by a two-thirds majority vote, propose amendments to the Constitution. Congress then would be able to accept or reject these amendments by a similar two-thirds vote.
To change the Constitution in this manner and place the states on equal footing with the federal government, Congress would have to propose, of course, a new amendment to the Constitution. The states should work with Members of Congress to devise such a mechanism and ensure that the states have this federalism protection in the future, Sorategy #6: Congress should allow the
states to hold their representatives more accountable by giving them the right to convene their congressional delegations when they feel cgregious federal mandates
and policies are being imposed. This type of reform would rectify the accountability problem created by the adoption of the Seventeenth Amendmen: in 1913, which stripped the states of their power to elect Senators directly to Congress.
After the adoption of the Seventeenth Amendment, Americans received the right to elect the Senators of their state through popular vote. Although this move can be considered an important victory for direct democracy, it also can be seen as a setback of sorts for the citizens of individual states. Prior to the adoption of the Seventeenth Amendment, Senators had been appointed by state legislatures, as mandated in Article 1, Section 3, of the Constitution.
In certain ways, this system actually held Senators more accountable to the people of the individual states because Senators were appointed by members of the state legislatures, which gave elected members of these legislatures a more controlling hand or voice in the making of national policy. Essentially, the Founders opted for
37. Representative J. D. Hayworth, prepared statement on the Congressional Responsibility Act of 1997, presented before the
Sutcommittee on Commercial and Administrative Law, Committee or the Judiciary, U.S. House of Representatives, September 25, 1997; available on the Internet at http://www.house.gov/hayworth/testimony/1036.htm.
Altemarely, or in addition to this plan, stale legislatures simply could demand the right to convene their federal representatives on an ad hoc basis whenever they felt particularly egregious federal mandales or policies were being imposed on them chat demand immediate attention. Either way, such mechanisms should be implemented to give the states the ability to act as a substantive check on national power, to regain a voice in federal matters,
and to hold federal representatives accountable to the interests of their state.
Strategy #7: Congress should give the states
a supermajority veto power over federal legislation or regulation that preempts their authority, or that requires them to
administer federal programs or rules. If the reforms mentioned above were implemented but federal officials still found it easy to put in place rules and regulations that run contrary to the true spirit and intent of the Constitution and violate the sovereignty of the states and the people, then a more radical reform option could come into consideration that would ensure the Founders' original balance of powers was restored and protected.
Many state and local groups and representatives advocate the adoption of a "states' rights veto" power that would force Congress to reconsider panicularly egregious or potentially unconstitutional acts. This states' rights veto power would require that a supermajority (that is, (wo-thirds) of the states pass resolutions calling for the repeal of a specific federal statute or regulation that they collectively feel has been imposed unjustly on them. The states would have three to five years to consider passage of the veto.
Coupled with the adoption that year of the Sixteenth Amendment, which removed the restrictions on Congress's ability to tax the income of all Americans, two important impediments to the growth of national power were removed in very short order. Since 1913, the federal government has had an almost unlimited power to tax and spend, while the states have had little say in the ways in which these decisions are made, thanks to the adoption of the Seventeenth Amendment.
Although some political scientists still question the wisdom of the Seventeenth Amendment, most Americans have become accustomed to electing their political representatives directly, and they are unlikely to want to surrender this right. Optimally, however, a system or mechanism could be created that preserves the right of the citizens to elect their federal officials directly but allows them to demand more accountability of these federal officers to che interests of their states and the state legislatures at the same time.
One such mechanism might take the form of an annual or semi-annual meeting of state and federal representatives within the state capitais to discuss federal policies and programs that might affect the states. A legislature could request that the state's entire congressional delegation convene for such a meeting, or it could request that just a few members represent their state delegation of U.S. Senators and Representatives. State legislators then would be able to confront the federal
38. Douglas Seay and Wesley Smith, Federalismn,' in Stuart M. Butler and Kim R. Homes, eds., Issues 96: The Candidate's
Briefing Book (Washington, DC: The Heritage Foundation, 1996), p. 432.
January 27, 1999
More important, however, is that, even if such a mechanism were adopred, it must have certain limits to ensure that some important powers and responsibilities guaranteed to the federal government by the Constitution are not sacrificed. For example, the scales should not receive the right to use such a veto power to interfere with the federal government's foreign policy or national security decisions. The Framers of the Constitution unambiguously entrust such responsibilities to the federal government because of the importance of having a unified voice and policy in the field of global affairs and diplomacy.
This is also the case with regard to treatymaking with foreign countries in general. The Constitution prohibits the states from making treaties with foreign countries, for fear of a balkanization within the American Republic. Not only does this mean the federal goverment has the exclusive right to negotiate with foreign governments on behalf of all Americans in foreign policy matters, but it means also that the federal government is the only entity that has the constitutional authority to enter into trade agreements and commercial treaties with foreign countries. Therefore, if a states' rights veto mechanism were put into place, it would be vital that these sorts of exceptions which have solid constitucional and practical justificationsbe included in the measure so that the staies could not overrule federal officials on sensitive matters.
implemented to ensure that constitutional
Devise a package of devolution options :o
OTHER REFORMS TO HELP
The strategies above are only a few of the reforms that could be pursued in upcoming sessions of Congress to restore the proper balance of powers between the states and the federal govemment. Other important reforms could be
As America approaches the 21st century and gets closer to celebrating its 225th year of
39. For more information, see Cooper and Thompson, “The Tenth Amendment The Promise of Liberty." pp. 5–6. 40. For many other creative ways to rein in federal power, return functions to the states, and avoid any political pitfalls in the
process, see Douglas Seay and Robert E. Moffit, “Transferring Functions to the Scales," in Stuan M. Butler and Kim R. Holmes, eds., Mandate for Leadership IV: Turning Ideas Into Actions (Washington, DC: The Heritage Foundation, 1997), pp. 87–127. See also Seay and Smith, “Federalism," op. cit.