“Delegatus Non Potest Delegare”—-Latin for “delegated power cannot be delegated”. This is an ancient maxim, one that should make intuitive sense, but one that I think we all need to re-acquaint ourselves with — especially as Americans in 2020, and especially in regards to the legislative branch of the United States.
Locke and Delegated Power
Alright, so, John Locke introduced the idea of a legislature, delegated with the job of making law. The law that the legislature is supposed to make is created for only one purpose—-protecting private property.
It’s really important that we, as Americans, are all fully aware of the theoretical reasons behind why our legislature alone should be able to make law. In order to understand this, we need to understand why Locke argued only a legislature should make law.
The first reason is the answer to the following question: Who delegates to the legislature the power to make law?
According to Locke, we “the people” created the legislative branch and gave the branch the power to make law (a power we all held within ourselves before creating government). Locke says that any law this legislature makes was only meant to protect private property, and that’s it. Meaning, we created the legislative branch and delegated to it the power to make law because we wanted our private property to be protected by that law.
The US Congress and Delegated Power
Now, in terms of the United States government, the lawmaking powers of the legislative branch are confined by the Constitution. Meaning, Congress can only write and pass laws that fall within the confines of the powers that the Constitution says it has. This is all well and good but why does the Constitution give Congress and only Congress this power to make law?
First, I want to make sure y’all really get this—Congress only makes law. (Read my post discussing why Congress is the preeminent branch to better understand why Congress is so important.) I’m going to emphasize this point over and over. Congress was meant to be (and should be) the only branch making law.
Legislate means “to make law”, which is why the legislature is the only branch of government tasked with making law. And why is this branch the only branch tasked with making law? Because it is the branch most directly connected to the people it is representing—us!
Think about this for a moment. In the U.S. federal government, who do we elect?
The President, yes. I figure you all probably immediately thought of this. Ok, who else?
Executive agencies in the incredibly complex and gigantic bureaucracy? No.
So, in reality, other than legislators in Congress, we only elect one other person in the federal government. Crazy right?
Which is why, Locke argues, it is so important for the legislative branch to be the branch designated with making the laws we’re going to be forced to follow in order to protect our private property. Locke introduces the idea that mankind, if he is to live under government, must only do so if the government is created by the consent of the people, if the government is subject to law, and if the government is trusted by the people.
So, this is pretty circular. The legislative branch is the only branch tasked with making law because it is the branch most connected to and held accountable by the people—-and it is the only branch most connected to and held accountable by the people because it is the branch that makes law.
This is why Congress is the only branch that should make law. We, the people, delegated to Congress the power to make law—on our behalf—in order to protect our private property. Congress cannot, in turn, give that power away to someone or something else.
Here’s an example: Let’s say you are the boss at your job and you delegate to a subordinate, Bill, the power to schedule your appointments for you. Bill, cannot, in turn, give this power to someone else. Why? Because it is not Bill’s power to give away. And, if Bill did give it away, the person to whom he gave this power to, is not directly accountable to you in the same way that Bill would have been. Make sense?
Now, I know this maxim, “delegated power cannot be delegated”, is rather simplistic but you really need to digest it for yourself so that you have this foundation when assessing our government today and when interacting with other Americans who know nothing about this maxim’s connection to the American Congress.
Specifics and Conclusion
Congress cannot and should not give its lawmaking powers to the executive branch or the judicial branch—-for all the reasons I just stepped through. If the bureaucracy or the president is able to make law, they are violating this principle of delegation, the Constitution, and our trust. Aside from the president, we do not elect the other branches of government, and therefore we cannot keep them accountable for what they do. Neither can they know what we want them to do.
It’s fundamental that you understand why Congress should be the only branch of government making law. If you don’t know this, then you don’t have any theoretical foundation backing your belief that the Courts shouldn’t make law, or the President shouldn’t make law. You may be able to say, “Well, it violates the Constitution when another branch makes law”. Ok, but don’t you want to know why the Constitution says this? There is a reason the Constitution didn’t give the lawmaking power to the other branches——and that is what this article explains.
The kicker here, of course, is that, in modern American politics, the executive and judicial branches make an innumerable number of laws.
Meaning, the maxim of delegated power not being delegated has been violently violated by our government and the longer this violation is allowed, the more dangerous our government becomes. At another time, I will give more specifics regarding how these violations are happening, but that is not the point of this article. The point of this article is to build for you theoretical grounding so that when you read these specific violations, you understand why they are violations and why they are a problem.
Until next time!
The Liberty Belle