I'M WILLING to bet that when confirmation hearings begin for Supreme Court nominee Elena Kagan, the most important question (in my opinion) will not be asked.
It's "Where do you stand on the nondelegation doctrine?"
I'm also willing to bet that for most readers that question led to a "Huh?" so let me try to explain the question and its significance.
Imagine a lawyer defending a client in a criminal case. The client has waived his right to a jury trial, and so the judge will render the verdict. After all the witnesses have been heard, the judge announces he's going on vacation, and delegates to the prosecutor the authority to decide the case. "But," the defendant's lawyer says to the judge, "you can't do that." "Why not?" asks the judge. "The prosecutor and I are both government officials."
You're thinking this is absurd because everyone knows the same person can't exercise the functions of prosecutor and judge. The Constitution separates the government into three branches: executive, legislative and judicial. Letting the prosecutor decide a criminal case would violate the principle of separation of functions, which serves to protect us from tyranny.
OK, my example is a bit extreme, but you get the idea. The legislature makes the laws, the executive enforces the laws, the judiciary renders decisions about the application of the laws. At least, that's the theory.
In real life, we don't let either Congress or the president exercise the judicial function, nor do we let the judges or the Congress enforce the laws. Activist judges, from the left and the right, have for many years acted like a super legislature making laws. We have come to accept it, especially when we like their rulings. In any event, there isn't a whole lot we can do about it.
But in recent years, we've been less and less scrupulous about not letting the executive branch make our laws. And that's where the non-delegation doctrine comes in.
Probably none of us will be overly upset by a narrow delegation by Congress to a federal agency of authority to establish, for example, a fuel economy standard for cars.
Such a delegation is unlikely to produce much mischief, and is, most would agree, an aid to efficient government. Congress would be establishing the basic principle of setting mileage standards, and leaving to the president or a regulatory body only the task of determining what that standard should be.
But over recent times, with thousands of pages of legislation that probably no member has really read (like health care, for example), Congress has created numerous new federal offices and agencies with broad authority to issue rules and regulations that will have the force of law.
None of these rules and regulations will have gone through the constitutional process of approval by both houses of Congress, and then the president.
With all this legislation, Congress is effectively turning over to the executive branch virtually unbridled authority to make law in every major area of the economy. The result is that countless unelected officials will be issuing rules, regulations and interpretations of statutes. And, because of a 1984 decision of the Supreme Court (Chevron v. Natural Resources Defense Council), we can't take comfort that the courts will protect us from overzealous bureaucrats.
Justice Stevens, speaking for the court, said that when Congress has delegated authority to an agency, the courts must defer to the reasonable policy choices made by the agency. And the agency may "rely upon the incumbent administration's views of wise policy to inform its judgments."
THE RESULT of that decision is that while Congress must follow the constitutional process for making law, a single government official can do so in the guise of interpreting a statute. Indeed, it has already happened.
So I do hope someone asks Kagan (perhaps it might even be our very own Sen. Arlen Specter):
Where do you stand on the nondelegation doctrine?
Howard Lurie is professor emeritus of Villanova law school. Contact him at