Legislation which confers massive arbitrary power upon the executive branch is not rule by law, it’s a form of rule which the Founders called tyranny. Hayekian journalist George Will drills down on the significance to a free society of the difference between arbitrary power conferred by legislation and the rule of law under Constitutional government, a point Hayek explains in The Road to Serfdom, again in The Constitution of Liberty, and once again in Law, Legislation and Liberty. Here’s Will:
It is high time Americans heard an argument that might turn a vague national uneasiness into a vivid awareness of something going very wrong. The argument is that the Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional.
By enacting it, Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: “Here is $700 billion. You say you will use some of it to buy up banks’ ‘troubled assets.’ But if you prefer to do anything else with the money — even, say, subsidize automobile companies — well, whatever.”
FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates “the nondelegation doctrine.” Although the text does not spell it out, the Constitution’s logic and structure — particularly the separation of powers — imply limits on the size and kind of discretion that Congress may confer on the executive branch.
The Vesting Clause of Article I says, “All legislative powers herein granted shall be vested in” Congress. All. Therefore, none shall be vested elsewhere.