This is the tenth in a series of posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text reproduced immediately below.
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.
Law presumes to frame the future. It especially endeavors to put boundaries around risk. In making law a tyrant, legislature, judge, regulator, or free persons entering a self-made contract consider possibilities and say: this far and no farther.
Publius (probably Madison) argues, “In republican government, the legislative authority necessarily predominates. ” (Federalist 51) It was clearly the intent and expectation of the Framers at Philadelphia that Congress would predominate.
In our time this singular authority of Congress has been supplemented. In 1928 the US Supreme Court found in J.W. Hampton, Jr., & Co. v. United States that legislative authority could be delegated so-long as Congress, “shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform…”
In Mistretta v United States (1989) the Court explained,
Applying this “intelligible principle” test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.
From such small seeds the s0-called Administrative State has grown large, including components of the Department of Homeland Security. On this legal basis agencies make law (try to frame the future) in a manner consistent with intelligible principles set out by Congress and understandings of emerging context.
The bicameral character of the federal legislature emerges principally from political compromises used to persuade less populous states to support the Constitution. The Federalist, see especially No. 62, notes three substantive benefits that might serendipitiously emerge from this political necessity:
First, two legislative bodies will seriously impede the ability of any foreign or domestic cabal from seizing authority.
Second, longer-serving Senators less responsive to the electorate will help contain the sometime over-wrought passions of the demos. (Recall Senators were not elected directly by voters until 1913.)
Third, by virtue of serving longer — and probably being drawn from those with legislative experience at the state level — Senators are more likely to exercise wisdom regarding the “objects and principles of legislation.”
Further to the third point, Madison (or Hamilton, historians disagree on No. 62) offers:
It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people of the value of those aids which may be expected from a well constituted senate?
More than two centuries of legislative history convinces me of these bicameral benefits. But the decade-plus since the Department of Homeland Security’s creation has coincided with a particular trough in Congressional effectiveness. Over this period a case can be made that one body or the other has served to mitigate a greater harm originating in the other body. But over this particular time in regard to homeland security, two chambers has probably meant mostly double-trouble.