Could Congress legally delegate all of their powers to the President?

Supposing that Congress and the Presidency was taken over by one party, say the National Socialist party. Could they choose to delegate all their powers to the President so that he could effectively rule by decree? Even if they did, it is my understanding that the President couldn’t change the constitution without three quarters of the states going along with him. Is that correct?


They could try, but I don’t think they’d see much success. It’s been an established principal since Youngstown v. Sawyer, that the executive’s role is the enforcement of existing law and not the creation of new law. Congress could certainly give the president a lot more power than they currently do now, but he still wouldn’t be able to issue decrees without some existing federal statute to back him up. And executive orders are subject to constitutional scrutiny as much as statutes are.

Constitutional amendments do require the consent of 3/4 of the states.

No. Article 1 of the Constitution grants Congress “all legislative powers”. It can’t delegate. Furthermore, it lays out the procedure of passing legislation in the Presentment Clause. You may recall the Line-Item Veto Act in the 90s, that was struck down by the Supreme Court. They ruled that it violated the Presentment Clause, but they could have also struck it down on nondelegation grounds, according to many.

There’s even a clever name for the principle: the nondelegation doctrine.

Well, not quite. In Ravenman’s link:

That is how administrative agencies enact regulations. Congress has to set up the broad guidelines but the agency enacts regulations implementing the laws Congress passed so long as any regulation is consonant with the Act. Administrative agencies are part of the executive branch of government.

Didn’t Lincoln and FDR get away with a lot of stuff due to national emergencies?

Lincoln imposed martial law, which was unconstitutional. Many of FDR’s recovery acts were struck down by SCOTUS. But what is SCOTUS going to do if a president violates its decision? Wasn’t it Andrew Jackson who said that SCOTUS has made its decision now let it enforce it, regarding the native American relocation?

Well, that’s the Supreme Court’s dirty little secret. Sometimes decisions come down a little more moderate than the justices may have wanted for the simple fact that virtually all power the SC has is by consent, and if Congress and the President together decide that they don’t want to listen to the Supreme Court anymore, there’s not a dang thing the Court could do about it.

Many dictators find it useful to have a legislature to rubber stamp their decrees.

I remember from HS (sorry no cite; that is going back 60 years) that courts have held that some broad delegation of authority was unconstitutional. It was not clear how much delegation was too much.

One way the courts can impose some of their rulings is that if any case came to court, they could simply refuse to hear cases in violation of a SCOTUS decision. Of course, if the president simply threw people into prison and let them rot there, there’s not much the court can do about it.

As far as that goes, how many soldiers does congress command?

But in both cases, they could argue that they were carrying out the will of Congress.

I seriously doubt it.

No, they couldn’t do that constitutionally. They would have to overthrow the entire US government, which theoretically could happen, but practically would be a monumental task. In practice, the best way for someone to basically “rule” by fiat as President under the current system would be to have an enormous supermajority of your party in both houses of Congress who agree totally with the President’s agenda and will rubber stamp anything he wants, as well as a majority of Supreme Court justices who will do the same thing. Even “better” if several justices are the appointees of the President. Of course, constitutionally, they would still have to go through the motions of sending bills through the House of Representatives, Senate, the President to sign it, and if need be, found constitutional by the Supreme Court.

In some cases they can delegate cetain authority - i .e. we passed a law saying there is a fee to register your aircraft, but we’ll let the Transport department set the amount.

However, recall the DoC got caught on this during the CB radio craze - they were charging an excessive amount to license a radio, and SCOTUS said that a fee well above the need to cover the cost of administering the licenses (IIRC about $100) was actually a tax and if a tax was intended, congress would have to pass a law to that effect.

Similarly, congress can pass a law, for example saying the health department will set the standards and rules for proper handling food, and then fines apply if the regulations are violated fines apply; but if the law itself passed by congress is too broad (i.e. “the president can make regulations declare any activity regarding automobiles a crime”) then likely SCOTUS would declare that too broad and not constitutional. (I assume, since in a lot of cases the question is, “what was the intent when passing this law?” that a law without valid intent aimed at specific situations would also be overy broad and unconstitutional)

Wasn’t there a Congress that recently voted to let a President invade a foreign country if hefelt justified? Maybe I’m not recalling correctly.

The president may order the invasion of any country any time he wants. He doesn’t need anyone’s permission.

But if he wants to have a budget to prosecute a war, a congressional resolution authorizing the use of military force is a useful tool.

No Congress has ever given a president unlimited authority to wage any war he wants.

They don’t even necessarily have to agree if party discipline is strong enough, as the President is generally regarded as the head of his party. And, of course, they don’t need the Supreme Court involved at all if they aren’t doing anything that appears to violate the Constitution.

I’m not clear on the boundaries here. For example, hasn’t Congress delegated 100% of its power to print money to the executive branch? It has also delegated almost all of its regulatory powers.

Congress has established agencies for various domains, such as the Social Security Administration (which once was part of the Dept. of Health and Human Services, but a few years ago became a separate cabinet position), the Food and Drug Administration (an agency of the Dept. of HHS), Foreign relations (an agency of the Dept. of State), Internal Revenue Services (an agency of the Dept. of the Treasury), etc. Congress enacts general laws covering the various areas, such as the Social Security Act, but the burden of implementing those acts are upon the agency. Congress has delegated the authority to enact regulations to the agencies, but, of course, the regulations the agency enacts must not be inconsistent with the general provisions of the Act, under which the agency acts. These regulations are published in the Code of Federal Regulations. The Code is divided into 50 titles governing all 46 agencies (Title 1 is “General Provisions,” Title 2 is Reserved, and Title 3 is “The President” - Executive Office of the President - which is not an agency, but the head of the agencies, and which is set up in the Constitution).

There were two AUMFs. The first one let him use military force pretty much anywhere. This one was used to invade Afghanistan. The second one was specific to Iraq. That’s the way it’s supposed to work. Congress authorizes and the president acts.

Did you think it was supposed to work some other way? And, as others have noted, the War Powers Act allows considerable latitude without Congress’ authority for a limited amount of time.