by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Politics consists of excitement, high sentiment, and soaring declarations. Governance is boring. It consists of the little things, of the details, precisely of such questions as how much authority the elected legislature can delegate to the unelected and democratically unaccountable bureaucracy and what form that delegation can take. Justice Kagan argued that if the disputed “delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Justice Kagan is a practitioner of outcome-first/argument-after jurisprudence — she insisted during her confirmation hearing that there was no constitutional mandate for homosexual marriage and then discovered one at the first opportunity that presented itself — and is properly understood as a political actor rather than a legal one. In that, she exemplifies the worst of our legal institutions and the reason why so many Americans, myself included, trust them so little.
But Kagan is not wrong to affirm the legislature’s need to entrust the executive apparatus with certain discretionary questions about how a law is enforced. That is how governance works, and it is why we have an executive branch. It is difficult to get delegation just right. But convenience, no matter how needful, is not an unrestricted license. Congress cannot simply pass a law declaring “Americans shall have good health care, and the secretary of health and human services is hereby empowered to do what is necessary to make that happen.” A little more work is necessary.