Comment by sanderjd
1 year ago
Pretty hard to square this perspective with the recent Raimondo decision, no?
Is the EPA, at the direction of the sitting president, making rules about coal power plants not an example of the use of "all executive power. All of it."? Or does A2S1 carve out exceptions for the EPA, even if it doesn't for those other agencies?
Whatever you think about Chevron deference or the specific EPA case I'm alluding to, the point is: The balance of power between the executive and legislative branches is nowhere near as clear cut as your comment suggests. Congress frequently legislates the structure and responsibilities of executive agencies. Presidential administrators cannot legally change those responsibilities unilaterally.
Making rules sounds awfully like legislation, which is a job for the legislature rather than the executive. Arguably, the executive can only regulate the executive, and Congress has to pass laws which apply to the populace at large.
That’s certainly not the way things have been run for a long time, but it doesn’t seem irrational to argue that’s the proper constitutional structure.
The legislature is well within its rights to delegate rulemaking authority. (I recognize that non-delegation is a live debate, but I think it's a silly one.) But the executive has to make those rules within the bounds of the delegated authority.
> Making rules sounds awfully like legislation, which is a job for the legislature rather than the executive.
Good thing Congress establishes independent agencies then. Their entire point is to receive rule making delegated to them by Congress.
Article I, Section I states ‘All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives’; it says nothing about delegating those powers to independent agencies or to executive agencies. None of Congress’s enumerated powers state or imply that it may delegate its power to anyone else.
It would be pretty surprising if a law passed by Congress delegating to Charles Windsor its power to write the laws about taxes, borrowing money on the credit of the United States, regulating international and interstate commerce and so forth were constitutional.
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