Constitutional Restoration, Vertical and Horizontal – John G. Grove – Law & Liberty

Report on Constitutional Governance and its Alignment with Sustainable Development Goals

Executive Summary

This report examines the critical relationship between national constitutional structures and the successful implementation of the United Nations Sustainable Development Goals (SDGs). It analyzes how the delegation of legislative power to executive and bureaucratic agencies can impact the achievement of SDG 16 (Peace, Justice and Strong Institutions). The report argues that a holistic approach, addressing both the horizontal separation of powers and the vertical balance between national and local governments, is essential for creating the effective, accountable, and inclusive institutions necessary for sustainable development.

The Challenge of Centralized Governance to SDG Implementation

Erosion of Institutional Integrity and SDG 16

The principle of nondelegation, which posits that a legislature cannot delegate its lawmaking power to other bodies, is central to constitutional governance. The erosion of this principle presents a significant challenge to achieving key SDG targets. Specifically, it impacts:

• SDG Target 16.6: Develop effective, accountable and transparent institutions at all levels. When elected legislatures delegate broad policy-making authority to unaccountable bureaucratic agencies, it obscures lines of responsibility and diminishes institutional transparency.
• SDG Target 16.7: Ensure responsive, inclusive, participatory and representative decision-making at all levels. Shifting power from representative bodies to administrative experts can distance the policy-making process from public participation and oversight, undermining the goal of representative decision-making.

The Interconnected Challenges to Sustainable Governance

A comprehensive analysis reveals a close, domino-like connection between three systemic governance problems that collectively hinder progress towards the SDGs:

1. The expansion of centralized federal power beyond its originally defined limits.
2. The subsequent delegation of legislative authority from the legislature to the executive branch.
3. The empowerment of unaccountable administrative agencies within the executive to create and enforce regulations.

Addressing only the latter two issues without confronting the first—the over-centralization of authority—risks creating institutional instability rather than fostering the coherent policy environment required by SDG 17 (Partnerships for the Goals).

Realigning Governance with SDG Principles

Strengthening Institutions through Constitutional Renewal

A renewed focus on the nondelegation doctrine can serve as a powerful tool for advancing SDG 16. By ensuring that fundamental policy choices are made by elected and accountable legislative bodies, nations can reinforce the constitutional framework designed to protect against arbitrary rule. This approach directly supports the development of strong institutions capable of managing sustainable development effectively.

Federalism, Local Knowledge, and the Achievement of SDG 11

Foundational constitutional principles emphasize that representatives must be acquainted with the interests and circumstances of their constituents. This is most effective when the scope of authority is clearly defined. As the scope of central government regulation expands to encompass all aspects of common life, genuine representative self-government becomes untenable.

The argument that legislatures lack the expertise for detailed policy-making is often used to justify delegation to administrative agencies. However, this overlooks a more sustainable solution aligned with SDG 11 (Sustainable Cities and Communities). Rather than transferring power to centralized experts, authority should be devolved to states and localities, which possess the local and circumstantial knowledge necessary for effective and responsive policy-making. This empowers communities to implement tailored solutions for sustainable urban and regional development, as envisioned in SDG Target 11.3.

A Framework for Structural Reform and Sustainable Development

The Imperative of a Dual-Axis Approach

Any attempt to resolve structural distortions in governance by focusing solely on the horizontal separation of powers (nondelegation) is insufficient. Without also addressing the vertical balance of power (federalism), such reforms may lead to a crisis of legislative legitimacy, as central bodies prove incapable of managing an overextended regulatory mandate. This underscores the importance of SDG Target 17.14 (Enhance policy coherence for sustainable development), which requires alignment across different levels of government.

Challenges and Pathways Forward

Restoring a vertical balance of power faces significant obstacles:

1. Public expectation for centralized solutions to diverse social problems.
2. Powerful economic and political interests vested in a single hub of national authority.
3. Economic systems and political coalitions built around national-level regulation.

One proposed mechanism, “prospective overruling,” could allow for a gradual transition. This would involve courts affirming new constitutional limits on federal power while allowing previously established regulations to stand, thereby preventing immediate disruption. However, this path is fraught with complexity, potentially creating a rigid regulatory environment where outdated federal rules preempt more innovative state and local policies needed to achieve SDGs related to economic growth (SDG 8) and innovation (SDG 9).

Conclusion and Recommendations

Achieving the Sustainable Development Goals, particularly SDG 16, requires more than targeted policies; it demands a sound constitutional architecture. The structural integrity of a nation’s governance framework, defined by both the separation of powers and a clear delineation between national and local authority, is a prerequisite for building the strong, accountable, and inclusive institutions that can deliver lasting progress.

Recommendations:

• National governments should re-evaluate the delegation of legislative authority to ensure that policy-making remains with accountable, representative bodies, in line with SDG 16.
• Efforts to reform governance must address both horizontal (separation of powers) and vertical (federalism) axes to enhance policy coherence for sustainable development, as called for in SDG 17.
• Policy-making should be devolved to the lowest effective level of government to leverage local knowledge and promote participatory planning, thereby advancing the objectives of SDG 11.

Identified Sustainable Development Goals (SDGs)

SDG 16: Peace, Justice and Strong Institutions

• The article is fundamentally a critique of the current state of governmental institutions in the United States, focusing on issues of accountability, effectiveness, and the rule of law. It discusses the “structural distortions of our constitution” and advocates for a “constitutional renewal.” The core themes—such as the delegation of power from the legislature, the role of “unaccountable bureaucratic agencies,” the balance of power between federal and state governments (federalism), and the “declining trust in federal institutions”—are all central to the mission of SDG 16, which aims to build effective, accountable, and inclusive institutions at all levels.

Specific SDG Targets

1. Target 16.6: Develop effective, accountable and transparent institutions at all levels.

   • The article directly addresses this target by analyzing the erosion of accountability when Congress delegates its legislative power to the executive branch. The author highlights the problem of the “empowerment within the executive of unaccountable bureaucratic agencies.” The discussion about a potential “crisis of congressional legitimacy” if Congress is forced to make policy choices it is incapable of making well, further underscores the concern for institutional effectiveness and accountability. The entire argument for reinstating a “robust nondelegation doctrine” is a call to make the legislative branch more directly accountable for the laws it creates.

2. Target 16.7: Ensure responsive, inclusive, participatory and representative decision-making at all levels.

   • This target is relevant to the article’s argument for decentralization. The author argues that as federal authority has expanded to regulate “all aspects of common life,” genuine “republican self-government” has become impossible. Citing James Madison, the article posits that representatives must be “acquainted with the interests and circumstances of his constituents.” The proposed solution is not to delegate power to “experts” in federal bureaus but rather to send “that power back to localities and states with local and circumstantial knowledge as their guide.” This directly supports the principle of responsive and representative decision-making at sub-national levels.

3. Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

   • The article is an in-depth discussion on the rule of law as defined by the U.S. Constitution. It examines the judiciary’s role in upholding “the Constitution’s design for executive and judicial powers.” The debate over the proper interpretation of the commerce clause and the nondelegation doctrine is a debate about adhering to the nation’s foundational legal framework. The author’s call for a “constitutional restoration project” is a plea to strengthen the rule of law by returning to what are argued to be core constitutional principles regarding the separation of powers and federalism.

Implied Indicators for Measuring Progress

1. Public trust in governmental institutions.

   • The article explicitly mentions that as federal authority has expanded, it “almost certainly contributes in some way to the declining trust in federal institutions, of which Congress has long been the prime example.” This suggests that the level of public trust is a key indicator of institutional health and the success of any reform.

2. Degree of legislative power delegated to executive agencies.

   • The central theme of the article is the problem of delegation. The author discusses the “delegation of power from the legislature to the executive” as a primary “structural distortion.” Therefore, the volume and scope of rulemaking and policy decisions made by executive agencies based on broad legislative mandates, versus those made directly by Congress, would serve as a direct indicator of progress towards the nondelegation principle the author supports.

3. Level of decentralization of regulatory authority.

   • The article advocates for a “vertical balance” by returning power to states and localities. It contrasts the current system, where “Americans now look to Washington, DC… for policy,” with a system where states and localities regulate based on local knowledge. An indicator would be the ratio of policy areas primarily regulated at the federal level versus those regulated at the state or local level, tracking a shift towards decentralization.

Summary Table: SDGs, Targets, and Indicators

Source: lawliberty.org