This exchange among Conlawprofs asks where Congress gets the power to create new executive departments, where the Constitution does not explicitly provide the authority, say, to form a department of health, education, and welfare. Which clause in the Constitution provides the textual authority?
Here's the question:
Date: Fri, 17 Feb 2006 12:28:56 -0500
Does anyone on the list know under what constitutional authority
Congress created the Department of Education? My own frustrated
attempts to answer this question have not produced a clear answer.It seems to me that it could easily be justified under either the
commerce power or (since its principal responsibility seems to be
indirect regulation by placing conditions on federal money a la Steward
Machine, South Dakota v. Dole) the spending power. Its origins date
back to the late 1860s, though, long before the modern conflicts over
the scope of either of these powers, and the enacting legislation,
splintering it off of HEW, speaks only of the historic importance of
education, not of its connection to any of Congress's enumerated powers.Maybe the answer is too obvious for me to see, but I would appreciate
any help in connecting the dots. Off-list replies are fine, unless
others share my curiosity.Thanks,
Kevin
Prof. J.B. responds:
To answer this, you must distinguish two questions:
(1) What gives Congress the power to create any departments in the executive branch at all; and
(2) What gives Congress the power to create the sort of laws that will be implemented by that department.
The answer to (1) is the sweeping clause in its horizontal aspect, which gives Congress the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, *or in any department or officer thereof.*" (emphasis added). We usually think about this clause in its vertical aspect, that is, how it relates to the states, but it is equally important in its horizontal aspect, in giving Congress power to create new executive departments. The "horizontal sweeping clause" is the source of Congress's power to create various administrative elements of the federal government above and beyond its powers to provide for an Army and Navy, and to create lower federal courts.
We know that the Constitution contemplates creation of executive departments from the opinions clause of Article II, section 2, which gives the President the power to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." Because the number of executive departments is not specified in the Constitution itself, Congress is given the power to create new ones (or abolish old ones).
The test for whether an exercise of the horizontal sweeping clause is constitutional is the test of McCulloch.
This brings us to question (2).
If the Constitution gives the federal government no powers at all in the field of education, then it would not be appropriate under the horizontal sweeping clause to create a department of education. However, because the Constitution gives Congress powers to regulate education under the taxing and spending clause (as well as the commerce clause to some extent) it may create an Executive department which implements laws which it passes dealing with education.
J.B.