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Friday, February 15, 2019

The Non-Non-Delegation Doctrine

One common talking point about the national emergency declaration is that the President's action is unconstitutional. For this to be true, the National Emergencies Act must be invalid. Why might that be true though?

I can't think of a reason. Congress has broad discretion to delegate its authority. Why then could Congress not delegate its spending authority under certain circumstances? Because the power of the purse is not delegable? The fact that such a delegation was foolish is not a constitutional claim. I'll be curious to see whether the forthcoming lawsuits stick to statutory arguments or come up with some novel limitation on Congress's authority to delegate.

UPDATE: Perhaps you could say that Congress cannot delegate the power of the purse. I do not know what examples there are of Congress doing that. They have delegated the President broad discretion over tariffs, but maybe that can be distinguished from delegations of spending authority. There are self-funded agencies (such as the Federal Reserve) but maybe that is also different. Lots to chew over.

Posted by Gerard Magliocca on February 15, 2019 at 11:53 AM | Permalink


One can reach the announcement itself and more,in jurist,here:



Posted by: El roam | Feb 15, 2019 4:11:24 PM

I think we should draw a distinction between Congress delegating its legislative and revenue raising duties, which is problematic or forbidden, on the one hand, and Congress not tying the President's hands as much as they could have.

The president certainly has the inherent authority to build a wall to help execute the laws Congress passed forbidding entering America without permission. The only issue where is the president going to get the money to spend on it from? Congress has the exclusive power to appropriate money to allow the president to draw on the Treasury. That cannot be delegated.
But, Congress could certainly appropriate 1 trillion for the president to use as he sees fit. Congress could appropriate money with strings attached. And Congress could appropriate money with strings attached and provide that if the president jumps through certain hoops, he can spend that money any way he wants.
As long as Congress is appropriating a certain amount, it is not delegating its spending authority. It is exercising it. Whether and to what extent Congress micromanages what projects the president funds with appropriated money is up to Congress to decide.

The issue here, I think, is more of statutory construction. Congress appropriated certain moneys for certain purposes with the proviso that they can be repurposed if the President declares a national emergency. What qualifies as an emergency? Are courts going to second guess the president if he thinks something is an emergency but those enlightened philosopher kings don't? What standard will the courts use, a business judgment type standard or what?

Last, just to engage in some what aboutism, let's not forget that Obama spent money for the authorized but not appropriated re-insurance fund. The Republican Congress sued for himtaking money without appropriation.

Posted by: Biff | Feb 15, 2019 2:13:30 PM

One by the way,may reach the act itself here:


And reach Knote V. US,here:



Posted by: El roam | Feb 15, 2019 1:00:07 PM

just correcting my comment down there:

Nancy Pelosi,and not as written:"Nancy Paloosy"of course ....


Posted by: El roam | Feb 15, 2019 12:49:53 PM

Issues here are bit different. in Knote V. US the supreme court ( in an issue of pardoning ) held clearly that:

Moneys once in the treasury can only be withdrawn by an appropriation by law.However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers,—it cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power.

End of quotation:

So, according to the constitution, only congress can do it, and by appropriation. And what is it in fact, here for example from legal dictionary, I quote:

An appropriation is a legislative act authorizing the expenditure of a designated amount of public funds for a specific purpose.

End of quotation :

What the Democrats claim,notwithstanding the act itself right now, is that, one can't declare emergency state, for every issue of course. Must be critical to justify it.That can be a hell of precedent.Here I quote or refer to Nancy Paloosy, titled:

" Nancy Pelosi warns GOP that a Democratic president could declare gun violence a national emergency "


Here to the legal dictionary:

to CNBC:

Here to CNBC:


And one may read here, comprehensive post ( in " notice and comment " ) here:



Posted by: El roam | Feb 15, 2019 12:43:07 PM

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