A little-noted Masterpiece of Constitutional Scholarship by Justice Thomas

March 20, 2015

By Mark J. Fitzgibbons

Everything you really need to know about the Constitution (and that’s barely an exaggeration) -- why it is structured the way it is, what led to it, its purposes -- is found in pages 2 – 12 of the March 9 concurring opinion by Justice Thomas in the Dept of Transportation v Assn of American Railroads case. Although it received little media attention, Justice Thomas has provided us a masterpiece of constitutional thinking, explaining why “administrative law” -- the practice of delegating to bureaucrats the making and enforcement of rules with the force of law – is so profoundly unconstitutional.

You could spend years reading history books, the Federalist Papers, and case law, but you won’t find a better explanation of the essence of our Constitution. If you understand what’s in these few pages, you understand why we have the Constitution, why it is structured the way it is, and why it is essential to the American experiment.

Pay attention to his words and the words of others he cites -- arbitrary, unilateral, etc. Justice Thomas describes the dangers that the Constitution was written to prohibit, and he traces the roots of those dangers to abuses of the English “rule of law” on which the Constitution was based, but perfected in America to address those abuses. The Constitution corrected several flaws of the English system including limiting the authority of the legislative branch by placing the Constitution – this written law of the land – over all three branches of government.

As to our system of administrative law, we may often wonder how unelected bureaucrats got all sorts power to regulate us. Citing not only James Madison, John Locke, Sir William Blackstone and Montesquieu, but also modern legal scholar Professor Philip Hamburger and his brilliant book, Is Administrative Law Unlawful?, Justice Thomas shows America is back to the problems that the Constitution was written to prohibit by writing a mini-treatise on the Constitution itself.

His explanation of the Constitution provides a guide to how today’s administrative agencies are so out of whack with the separation of powers. Concurring opinions rarely get much attention. This one by Justice Thomas, however, was so effective that it drew a snarky article in Bloomberg by President Obama’s former regulatory affairs guru, Professor Cass Sunstein, stating that Justice Thomas is “eccentric,” and claiming that Justice Thomas “usually interprets the Constitution in a way that fits well with his admirers political convictions.”

That’s bitter rubbish, of course, since the constitutional scholarship and fidelity that Justice Thomas has always exhibited is in no better form than this March 9 concurring opinion, which exploits the dangers of the radical, lawless, and unconstitutional practices that Professor Sunstein and President Obama have used to advance their ideological agendas.

Read the whole thing, but here are some highlights, with most case and other references elided.

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When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it. (snip)

For example, Congress improperly “delegates” legislative power when it authorizes an entity other

than itself to make a determination that requires an exercise of legislative power. (snip)

An examination of the history of those powers reveals how far our modern separation-of-powers jurisprudence has departed from the original meaning of the Constitution. (snip)

The function at issue here is the formulation of generally applicable rules of private conduct. Under the original understanding of the Constitution, that function requires the exercise of legislative power. By corollary, the discretion inherent in executive power does not comprehend the discretion to formulate generally applicable rules of private conduct. (snip)

The idea has ancient roots in the concept of the “rule of law,” which has been understood since Greek and Roman times to mean that a ruler must be subject to the law in exercising his power and may not govern by will alone. (snip)

…it became increasingly apparent over time that the rule of law demanded that the operations of “making” law and of “putting it into effect” be kept separate…. But when the King’s power was at its height, it was still accepted that his “principal duty . . . [was], to govern his people according to law.” (snip)

…it was generally thought that the King could not use his proclamation power to alter the rights and duties of his subjects…. but he could not of his own accord “make a law or impose a charge.” (snip)

King James I made a famous attempt…prompting the influential jurist Chief Justice Edward Coke to write that the King could not “change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament….” Coke associated this principle with Chapter 39 of

the Magna Carta, which he understood to guarantee that no subject would be deprived of a private right—that is, a right of life, liberty, or property—except in accordance with “the law of the land,” which consisted only of statutory and common law….. When the King attempted to fashion rules of private conduct

unilaterally, as he did in the Case of Proclamations, the resulting enforcement action could not be said to

accord with “the law of the land.” (snip)

It followed that this freedom required that the power to make the standing rules and the power to enforce

them not lie in the same hands. (snip)

William Blackstone…. defined a tyrannical government as one in which “the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men,” for “wherever these two powers are united together, there can be no public liberty.” … Thus, although Blackstone viewed Parliament as sovereign and capable of changing the constitution, … he thought a delegation of lawmaking power to be “disgrace[ful]” …. (snip)

… in The Federalist 47, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than” the separation of powers…. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” …

This devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting

Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it. The Framers were concerned not just with the starting allocation, but with the “gradual concentration of the several powers in the same department.” The Federalist No. 51, at 321 (J. Madison). It was this fear that prompted the Framers to build checks and balances into our constitutional

structure, so that the branches could defend their powers on an ongoing basis….

In this sense, the founding generation did not subscribe to Blackstone’s view of parliamentary supremacy. Parliament’s violations of the law of the land had been a significant complaint of the American Revolution…. even the legislature must be made subject to the law. (snip)

At the center of the Framers’ dedication to the separation of powers was individual liberty…. This was not liberty in the sense of freedom from all constraint, but liberty as described by Lo>[in a footnote to this point] I do not mean to suggest here that the Framers believed an Act of

the Legislature was sufficient to deprive a person of private rights; only that it was necessary. See generally Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1715, 1721–1726

(2012) (discussing historical evidence that the Framers believed the Due Process Clause limited Congress’ power to provide by law for the deprivation of private rights without judicial process).

(snip)

The “check” the judiciary provides to maintain our separation of powers is enforcement of the rule of law through judicial review. (snip)

We have been willing to check the improper allocation of executive power, see, e.g., Free Enterprise Fund,… although probably not as often as we should…. Our record with regard to legislative power has been far worse. (snip)

Implicitly recognizing that the power to fashion legally binding rules is legislative, we have nevertheless classified rulemaking as executive (or judicial) power when the authorizing statute sets out “an intelligible principle” to guide the rulemaker’s discretion…. Although the Court may never have intended the boundless standard the “intelligible principle” test has become, it is evident that it does not adequately reinforce the Constitution’s allocation of legislative power. I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.

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His conclusion from page 27 is vintage Justice Thomas -- plainly written, and just plain brilliant.

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We have 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. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

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