Earlier this year, the line-item veto, Republicans' hard-won attempt to restrain a profligate federal government by giving the president an added anti-pork barrel tool, was found unconstitutional by U.S. District Judge Thomas Hogan.
He held that it was ''an unauthorized surrender of an inherently legislative function, namely the authority to shape laws and package legislation,'' that ''violates the procedural requirements ordained in Article I of the U.S. Constitution and impermissibly upsets the balance of powers so carefully prescribed by its framers.''On April 27, the Supreme Court heard oral arguments of the appeal of Judge Hogan's ruling.
The case's ultimate fate is unknown. But if Judge Hogan's reasoning is that the line-item veto violates the Constitution's separation of powers by delegating to the executive branch powers the Constitution assigned to Congress alone, it could become a precedent for far more than just the line-item veto.
Such a ruling could establish a basis for overturning a different, but even more important, class of congressional abuses of its constitutional role - the delegation of its legislative power through vague mandates to unelected executive agencies, which then pass the actual regulations that are legally binding on Americans.
It would open the door to a reconsideration of U.S. vs. Grimand, the 1911 Supreme Court ruling that to this day allows such open-ended congressional delegation to executive branch regulatory agencies, despite the clear wording of Article I, Section I that ''All legislative powers herein granted shall be vested in a Congress of the United States''.
Before Grimand, Congress already had begun moving toward giving administrative agencies the power to formulate the specific rules that were to implement Congress' general policy objectives. But in Grimand, the Supreme Court for the first time empowered these administrative rulings and regulations with the full force of law.
The result has been ever-growing power for federal bureaucrats and the special interests that often dominate them - the underlying reason for the many recent attempts to rein in such regulatory abuses. Unlike Congress, those bureaucrats need not clearly spell out their policies to the public, much less submit them to any form of voter approval.
And when a scandal makes some resulting regulatory abuse or failure apparent, Congress then hides from their ultimate responsibility by blaming those same bureaucrats they delegated the power to in the first place - as they did in the recent hearings into Internal Revenue Service abuses, when the scope and complexity of Congress' tax bills virtually guarantees that such abuses will be commonplace.
Congress' lack of action is a clear breakdown in American's constitutional protection from arbitrary government power.
While the clear meaning of the Constitution provides a very powerful reason for constraining our current Pandora's box of congressional delegation, there is another very practical reason, as well.
A Congress that must leave the details of its policies vague, to be filled in later by others, does not know enough for its ''solutions'' to improve social outcomes.
If legislation is to really solve a societal problem, lawmakers must know not only the specifics of what the problem is, but also the specifics of how they will fix it. But if legislators really knew the details of how to fix such a problem, they would trumpet them in every possible way at every opportunity.
Therefore, when they choose to delegate policy details to executive agencies, they must not know enough to provide the specifics of a workable plan.
If this is so, they do not know enough to make their fine-sounding solutions actually work, because policy effectiveness is determined by the details, where the devil lurks. This vague delegation of responsibilities to executive agencies is not a prescription for effective public policy
An overturn of U.S. vs. Grimand would reinstate the long-held requirement that Congress and the president approve all laws, by once again requiring passage of all new agency regulations before they take effect.
Such a ruling would truly be a move toward more accountable legislators and more effective public policy.
Not only would it bring us back into line with the Constitution, it would force our elected officials to answer for agency excesses and failures - rather than letting them blame bureaucrats for their own lack of real solutions.