The U.S. Congress in the 20th century has not been jealous of its powers. Under pressure from President Franklin Delano Roosevelt and the New Deal, Congress delegated to federal agencies the lawmaking powers expressly reserved to Congress by the Constitution. As a result, the American people are no longer governed by statutory law from bodies accountable to them. Both Theodore J. Lowi in the 1960s at the University of Chicago and, more recently, Yale University law professor David S. Schoenbrod have made the same point: The requirement in Article I of the Constitution that Congress make all laws has been ignored for the greater part of the 20th century. The country has become accustomed to legislation enacted by regulators guided by little more than their interpretation of congressional intent. The federal judiciary still gives occasional lip service to the prohibition against delegated powers, but it never finds any specific delegated power to be unconstitutional.
Since Congress has given away so much of its power to the regulatory agencies, one might expect that it would especially guard its power of the purse. Under our constitutional system, the elected legislature alone has the authority to tax. But Congress has remained silent in recent years while federal judges usurped the power of the purse from state and local democratic bodies. To equalize payments to public schools, federal judges have raised taxes in Yonkers, N.Y., and Kansas City, Mo. Just the other day, a federal judge ordered a tax hike in Rockford, Ill.
DISGUISED. The federal judiciary is gaining the power of the purse simply by exercising it. Therefore it is little wonder that agencies of the executive branch are starting to do the same thing. The Federal Communications Commission has imposed a tax on telephone companies, beginning this month, in order to finance Internet services for public schools and libraries. The FCC wants the phone companies to pass the tax on to customers in the form of higher charges.
The phone companies balked. They wanted to itemize the charge on their bills to customers as a tax--but they caved in to the FCC. MCI Communications Corp. had the important regulatory matter of its WorldCom Inc. merger before the FCC and the Justice Dept., and AT&T hopes the FCC will keep the Baby Bells out of the long-distance market. Now, an agreement has been reached: Business customers, but not residential customers, are going to be told that the FCC has imposed a tax.
The rate-making authority of regulatory agencies is supposed to apply to the prices that regulated monopolies charge their customers. This power is not supposed to be used to enact revenue measures in order to finance educational expenditures. Congress does not have the Constitutional authority to delegate the power of the purse to the FCC. Certainly this is not a time of national emergency that would justify violating the separation of powers. The FCC may argue that there is language in the 1996 Telecom Act that permits it to assess "fees." But a delegated power cannot itself be delegated. The FCC shouldn't be taxing anyone.
THIN VEIL. The vast delegation of legislative power to executive agencies that we see today stems from the temporary expediency of the 1930s' national emergency--and should be ended. The reason is that the executive branch cannot indefinitely function as lawmaker without becoming lawmaker in name as well as fact. The veil provided by the delegation doctrine has worn thin when the FCC imposes through regulation a tax on telephone customers. What is at stake is not good or bad policy, but self-rule--which has been achieved by a 1,000-year-long struggle.
Democracy in America is being hollowed out, not because of organized interest groups or the way campaigns are financed. Democracy has become the exercise of holding a plebiscite on the economy every four years: We the People cannot rule ourselves when our elected representatives do not make the laws or impose the taxes. The unraveling of the separation of powers is leaving power unrestrained. This is the opposite of liberalism and repudiates its historic achievement.
Congress is empowered to make laws. It is not empowered to make other legislators by placing its lawmaking mandate in other hands. Political clout is up for grabs when the U.S. Supreme Court reads into the Constitution all manner of rights nowhere mentioned in it but does not enforce the right to self-rule and the separation of powers that are explicitly stated in the document's main articles. Eventually, unrestrained force becomes, in Lenin's words, "unlimited power, resting directly on force. Nothing else but that."