As the administrative state distorts the United States’ constitutional architecture, Clarence Thomas becomes America’s indispensable constitutionalist. Now in his 25th year on the Supreme Court, he is urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch.
In four opinions in 112 days between March 9 and June 29, Thomas indicted the increasing incoherence of the court’s separation of powers jurisprudence. This subject is central to today’s argument between constitutionalists and progressives. The former favor and the latter oppose holding Congress to its responsibilities and restricting executive discretion.
“The Constitution,” Thomas notes in Department of Transportation v. Association of American Railroads, “does not vest the federal government with an undifferentiated ‘governmental power.’ ” It vests three distinguishable types of power in three different branches. The court, Thomas says, has the “judicial duty” to enforce the vesting clauses as absolute and exclusive by policing the branches’ boundaries.
Particularly, it should prevent Congress from delegating to executive agencies the essentially legislative power of formulating “generally applicable rules of private conduct.” Such delegation, Thomas says, erases the distinction between “the making of law, and putting it into effect.” This occurs when Congress — hyperactive, overextended and too busy for specificity — delegates “policy determinations” that “effectively permit the President to define some or all of the content” of a rule of conduct.
Today, if Congress provides “a minimal degree of specificity” in the instructions it gives to the executive, the court, Thomas says, abandons “all pretense of enforcing a qualitative distinction between legislative and executive power.” As a result, the court has “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”
Yes, the judicial abdication has been stunning.