A Short Essay Proposing a Test for Unlawful Executive Legislation

Abstract

The executive branch has no authority to legislate—our Constitution vests all legislative powers in Congress alone. This short essay addresses the following question: What test should courts use to identify actions by the federal government’s executive branch that are unlawfully legislative in nature? I propose the following answer: a rule promulgated by the executive qualifies as an unconstitutional exercise of legislative power if it purports to set standards for enforcing, against private conduct, a law that would otherwise be too vague to apply. A law is “too vague to apply,” if it “fails to give ordinary people fair notice of the conduct it punishes.” This test makes sense because if a statute is so vacuous or unclear or incomprehensible that it provides no fair notice of its requirements, then it is the equivalent of an inkblot or a string of gibberish, which is the equivalent of no law whatsoever. And a regulation purporting to carry into effect a statute that is no law whatsoever is, in fact, legislation all its own.