Of Course Delegation Is Necessary

For the work I'm doing I've been skimming through The Constitution of Empire: Territorial Expansion and American Legal History, by Gary Lawson and Guy Seidman. In particular I'm interested in the discussions, scattered throughout the book, of the Necessary and Proper Clause, which the authors consistently refer to as the "Sweeping Clause." (This is interesting, because Lawson has written a different article in which he argues at great length that the Necessary and Proper Clause is not sweeping, that it in fact borrows certain very specific standards from agency law. Anyway.) In the course of this skimming I came across this passage:

There is no express "Nondelegation Clause" in the Constitution that forbids Congress from delegating legislative power. Neither, however, is there an express "Delegation Clause" that permits Congress to delegate legislative power. The latter conclusion is more important under the principle of enumerated powers. The President and courts generally cannot exercise legislative powers on their own initiative because they are not granted any such powers by the Constitution; they are granted only the "executive Power" and the "judicial Power," respectively. But what if Congress passes a statute that says, in essence, "the President shall exercise legislative power with respect to X." If the President obeys that command, isn't the President simply executing the law in fine Article II fashion? That would be true if the Constitution authorized Congress to pass the relevant law. Congress, however, generally cannot delegate legislative power for the simple reason that the Constitution does not affirmatively authorize such delegations. The only possible source for a general power to delegate would be the Sweeping Clause, but delegations of legislative power are not "necessary and proper for carrying into Execution" federal powers and therefore are not authorized by the Sweeping Clause.

That's a very interesting theory of the Non-Delegation Doctrine, and probably a more plausible one than I've heard before. Except it has a problem, which is the last clause of the paragraph. Who says delegation isn't necessary and proper for carrying the federal powers into execution? Gary Lawson and Guy Seidman, apparently. Now, it's possible that they have some quasi-tautological argument in mind here, that delegation can never be necessary because Congress could've just made the relevant laws itself. If so, well, that's quasi-tautological so there's a limit to how much I can argue with it. But, look, in the modern world, and arguably in any world ever, delegation absolutely is necessary. There's a reason why literally every single modern government, including democracies both presidential and parliamentary, feature massive bureaucracies which exercise considerable delegated lawmaking power. You just can't have the actual national legislature making every tiny little rule. Life is too damn complex and (with good reason) the processes for passing acts of Congress/Parliament are too onerous to be used for that purpose. In practice the only viable alternative to actual legislative delegation is de facto delegation; that is, the adoption of the routine practice of having things that aren't Congress write up laws and have Congress pass them as a matter of course, waiving all the usual procedural hurdles that make that difficult. That's not really very different. One way or another, lots of laws are going to be made through something other than what we think of as the main legislative process. That seems to be, as a matter of practical experience, as absolutely necessary for carrying the powers of government into execution as anything else.

Now, there's also that pesky word "proper." I suppose someone could try to say that delegation of legislative authority is "improper," because delegata potestas non potest delegari. But that doesn't feel like much more than a tautological ipse dixit: X is improper because X is improper. Delegation doesn't seem to violate any express prohibition in the Constitution, as the above quote notes, though I suppose in certain contexts one could try to make out a Due Process violation. Lawson himself has an interesting theory of what the "proper" means, again drawn from his agency theory of the Clause, where it basically means that things the agent (Congress) does must be in the interests of the principal (the people). Under that standard it seems obvious that lots and lots of delegation can be proper, if we accept the conclusion above that it's necessary for having a well-governed regime. Add it all up and I don't really see how, except by simply deciding to read the NDD into the word "proper," one can avoid the conclusion that the Necessary and Proper Clause authorizes a hell of a lot of delegation.