Interpreting Power: The Principle of Least Authority

Introduction

John Locke wrote in his Second Treatise On Government, “[w]e agree to surrender some of our natural rights so that government can function to preserve the remainder. Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, nor tie themselves up under, were it not to preserve their lives, liberties, and fortunes; and by stated rules of right and property to secure their peace and quiet.”^[1]

The principle of least authority, a key idea of delegation in modern organization and security theory,^[2] had already been well expressed by an anonymous writer from Maryland in 1776: “All men are by nature fond of power, unwilling to part with the possession of it…[thus]…no man, or body of men, ought to be intrusted with the united powers of Government, or more command than is absolutely necessary to discharge the particular office committed to him”^[3] (emphasis added). John Stevens, a delegate to the Continental Congress for New Jersey,^[4] described the relationship between the principle of least authority and the separation of powers as follows: “The several component powers of government should be so distributed that no one man, or body of men, should possess a larger share thereof than what is absolutely necessary for the administration of government.”.^[5] As these quotes suggest, the principle can be applied at levels as far down as the lowest government office, or as high as the three branches of government. For rules, the principle of least authority can be applied from the most detailed regulation, to statutes, up to the level of the Constitution itself. A higher level rule can delegate power either by expressing delegating rule-making power or by implicitly giving discretion. Every constitution, every statute, every regulation, and every instruction of a boss delegates some power.

According to Locke, we ought to part with no more of our rights to life, liberty, or property then is necessary for government to preserve those rights from each other. “The right to do whatever one thought fit to preserve oneself is given up to be regulated by society so far forth as the preservation of himself and others shall require. When any rights are given up, it is only with an intention in every one to better preserve himself, his liberty, and his property.”^[6] A corollary is that government officials ought not to be given more power to take away those rights than is necessary for government to fulfill its role of the preservation of those rights addressed by the statute.

At a constitutional scale, the principle of least authority is reflected in the enumeration of powers and in the Tenth Amendment.^[7] Under a Lockean interpretation, the federal government was given certain enumerated powers only in order to protect life, liberty, and property. These enumerated powers gave the federal government no more authority over life, liberty, or property than it needs to protect life, liberty and property. Other powers, where more local decisions protect rights better, should be retained by the states, or by smaller groups, or by individuals, the ultimate source of all such authority. The Ninth Amendment^[8] is a mirror-image of the Tenth. Whereas the enumeration of powers should restrict the federal government to the least authority required to execute those powers,^[9] the enumeration of individual rights is open-ended – to coin a phrase, a principle of most rights against governments consistent with protecting the life, liberty, and property of others.

The principle of least authority, when applied at the statutory scale, depends first on clearly defining those enumerated powers, and then on giving the executive via statute, within the bounds of those powers, no more specific offices, authorities, or remedies than it needs solve specific problems of people infringing each others rights.

Executive Discretion to Interpret Statutes

Before we reach the higher-level constitutional question of whether statutory language improperly delegates too much power or an unconstitutional kind of function, it is crucial to first look at whether the regulation or discretion has actually exceeded the bounds defined by the statute – in other words, whether the executive is taking more power than Congress has delegated, or taking on a function of a kind that Congress did not delegate. This is straightforwardly answered by two cases, which together create the rule that the executive cannot expand or contract statutory categories in ways that expand the class of forbidden behavior. In Morrill v. Jones,^[10] the statute stated: “Animals, alive, specially imported for breeding purposes from beyond the seas, shall be admitted free [of duty], upon proof thereof satisfactory to the Secretary of the Treasury, and under such regulations as he may prescribe.” The Secretary wrote a regulation stating that before a collector admitted such animals free he must be satisfied that the animals are superior stock, adapted to improving the breed of the United States. When Jones imported animals for breeding purposes, and Morrill, the collections agent, demanded the duties because he did not think the animals were superior, Jones sued to recover his money. The Court gave it to him, striking down the regulation. “The statute clearly includes animals of all classes,” wrote Chief Justice Waite. “The regulation seeks to confine its operation to animals of superior stock. This is manifestly an attempt to put into the body of the statute a limitation which Congress did not think it necessary to prescribe.” Arguably, the Secretary was clarifying a subjective test (purpose) with an easier to administer objective test (superior stock). However, under Morrill, such a clarification is beyond the authority of the agency if the clarification’s tendency is to expand rather than contract the class of forbidden behavior.^[11] Such a rule makes eminent sense from a non-delegation perspective, where the measure of delegation is that of power over life, liberty, and property of potential law violators, and the function being delegated is rule-making that covers a general category, animals of superior stock. Making leges, a general positive rule, is a core legislative function, not to be delegated lightly, and certainly not to be taken by the executive where it has not been clearly delegated.

In U.S. v. Eaton,^[12] the problem was a rule that added to a category of forbidden behavior. The rule, in other words, enlarged the persons subject to a statutory reporting requirement and potential fines. The statute – along with the resulting regulations (presumably advocated by the dairy lobby) laid a large tax on oleomargarine, and expressly required manufacturers of oleomargarine to keep books for inspection by the tax collectors. The Secretary of Treasury then wrote a regulation that also required oleomargarine wholesalers to keep such books. In auditing, it is much easier to detect fraud if both sides of a transaction are keeping books simply compare the books of the wholesaler and manufacturer. The two companies would now have to collude to defraud the tax authorities. So the regulation made eminent practical sense.^[13] The problem was, it went beyond the statute by expanding the category of forbidden behavior. “The secretary of treasury cannot by his regulations alter or amend a revenue law…much more does this principle apply to a case where it is sought substantially to prescribe a criminal offense by the regulation of the department. It is a principle of criminal law that an offense which may be the subject of criminal procedure is an act committed or omitted in violation of a public law, either forbidding or commanding it.”^[14] Is the Court implying that such a regulation is not law, and thus cannot be made the basis for initiating criminal process, unless the alleged perpetrator already falls within the statutorily prescribed categories? “If Congress intended to make it an offense, it would have done so distinctly. However, the court explained, regulations prescribed by the president and by the heads of departments, under authority granted by congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal offense.”^[15]

Such rules of interpretation work well as a check on executive power when Congress and the courts cooperate in defining language clearly and interpreting it straightforwardly, respectively. The non-delegation doctrine proper is invoked when either side fails in this task. When Congress writes vague or overly broad language, it not only may delegate too much power or the wrong kind of function, in violation of “[a]ll legislative powers shall be vested in a Congress,”^[16] but it also may hinder the ability of the executive to “take Care that the laws be faithfully executed.”^[17] How can the President faithfully execute a law that is vague, or that is so broad as to allow execution nearly at whim? If Congress frustrates the executives ability to obey the Constitution, that is arguably as much a violation of the Constitution as if the President directly disobeyed the Constitution.

Prohibiting interpretations that expand legal categories to take more life, liberty, or property than another reasonable construction of the category would allow (under Morrill, Eaton, and the principle of least authority) is not merely consistent with the rule of lenity. It also prevents improper delegation of legislative power via the following legal principles: derativa potestas non potest esse major primitive – the power which is derived cannot be greater than that from which it is derived,^[18] nemo praesumitur donare – no one is presumed to give,^[19] and potestas strict interpretatur – power should be strictly interpreted.^[20]

Sloppy Language and the Principle of Least Authority

Founder James Madison feared the sloppy use of language. “Besides the obscurity arising from the complexity of objects and the imperfection of human faculties, [language] adds a fresh embarrassment. The unavoidable inaccuracy of terminology must be greater or less, according to the complexity and novelty of the objects defined.”^[21] While Madison feared the impact this would have on constitutional interpretation, the accuracy, or lack thereof, of terminology is also a major issue when it comes to statutory interpretation and the non-delegation doctrine, especially considering the complexity and novelty of issues when dealt with on a national scale.

We have seen how at the constitutional level, the principle of least authority is reflect in the Tenth Amendment. At a statutory level, the principle of least authority depends on a clear definition of the function, or office, to be performed, and specific definitions of the authorities over and remedies against life, liberty, or property available to the executive. If the function delegated by a statute is vague, then we must guess as to the amount of authority to give to the official. If we do not give the official enough authority, then he might be unable perform the function, or he might perform it too poorly resulting in a net loss of rights. Delegate too much authority, and we have taken on the risk of the abuse of that excess authority for too little gain in functionality. The sloppier the statutory language is, the more abusable excess authority we must give our officials, and the less we can actually expect them to get done.

Furthermore, specific language provides less room for discretion than general language. If the goals of a statute can be accomplished with more specific language, this is to be preferred, as the excessive generality supplies the official with excessive authority, which can be abused.^[22] Under the principle of least authority should construe statutory language as conferring the least amount of power necessary and proper (under the plain language meaning of those terms) to execute the statute. This was the approach we saw above in Morrill and Eaton, enforcing derativa potestas non potest esse major primitive – the power which is derived cannot be greater than that from which it is derived. The principle of least authority adds the idea that, when, unlike in Morrill and Eaton, a statute is genuinely vague or ambiguous, we must construe it as conferring only the most specific and limited powers consistent with its vague language. Thus, for example, if the statute’s purpose or intelligible principle can be construed in multiple ways, it should be construed as having the purpose or principle that requires the least authority to execute. The result may be similar to the rule of lenity, but the analysis here derives from representation and the separation of powers, not from the Sixth Amendment notice rights of the defendant. The principle of least authority in statutory construction should be used not only by the judiciary in interpreting the statutory language as applied to a specific case, but also by the executive in filling in the details"^[23] of a statute by writing regulations.^[24]