Conclusion

“If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace.  We ask not your counsels or arms.  Crouch down and lick the hands which feed you.  May your chains set lightly upon you, and may posterity forget that ye were our countrymen.”  Samuel Adams, 1776.
 
 A equilibrium of balance within the federal government itself has not always been obtained in our national history, but it is correct to say that with the exception of a state of war, there never has been heretofore such vast concentration of congressionally delegated power in the office of the Chief Executive as existed under Roosevelt’s New Deal administration.  In 1933, the justification for such a deposit of power was that the emergency nature of the times demanded it and that the Chief Executive himself, or his office, could with greater efficiency exercise or execute it.  As in a state of war, the president is empowered by Congress to declare by public proclamation when this emergency status had ended.  This has not yet been done, even seventy years after the so-called “great depression” ended, and the view now widely held in Congress is that the powers delegated to the Executive arm will be retained indefinitely, or until Congress itself reassumes the powers or repeals the statutes.

Under the Constitution, of course, there was no legal machinery to prevent this deposit of power by Congress, in the first instance, or to compel repeal of such legislation.  The only possible constitutional remedy was for a private litigant in a proper case or controversy to question exercise of a given instance of such power, if he could prove special damage.  This might be difficult to prove.[1]  The recipients (a state or individual) of any benefit or federal funds would not challenge the source of power and even had they done so would not have been met by well established judicial doctrines of estoppel or waiver, as the case might be.  Government by executive order or decree has been made possible under the vast powers thus entrusted to the president by a compliant Congress, thus substantially destroying, for the time, equilibrium of power within the federal framework.  That Congress during the 1930’s or even today may have been or may be motivated by laudable intentions does not validate it as constitutional.


[1]  Ashwander doctrine.

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