How to Re-Constitutionalize Our Regime – John O. McGinnis – Law & Liberty

Report on Institutional Frameworks and Sustainable Development Goal (SDG) Alignment

1. Executive Summary: Governance, Accountability, and the 2030 Agenda

This report analyzes the critical link between national governance structures and the successful implementation of the Sustainable Development Goals (SDGs). It focuses on the practice of delegating legislative power to executive agencies, a practice that poses significant challenges to achieving SDG 16 (Peace, Justice and Strong Institutions). The central thesis is that while this delegation undermines accountable governance, abruptly reversing decades of regulatory practice would create systemic chaos, jeopardizing progress across all SDGs. A method of “prospective overruling” is proposed as a stable, forward-looking solution to realign governance with constitutional principles, thereby strengthening the institutional foundation required for sustainable development.

2. The Challenge of Delegated Authority to SDG 16

The delegation of broad, unguided policymaking authority from legislatures to executive bodies directly impacts the targets of SDG 16, which calls for effective, accountable, and inclusive institutions at all levels.

2.1. Undermining Accountable and Representative Decision-Making

• SDG Target 16.6: The development of effective, accountable, and transparent institutions is compromised when core policy decisions are made by unelected executive officials rather than by elected legislative representatives.
• SDG Target 16.7: Ensuring responsive, inclusive, participatory, and representative decision-making is more difficult when legislative bodies transfer their primary lawmaking function, creating a democratic deficit.

2.2. The Scope of Impact on Sustainable Development

The extensive use of delegated authority, particularly under broad interpretations of powers like the Commerce Clause, has created a regulatory environment that touches every aspect of the 2030 Agenda. A sudden invalidation of these regulations would disrupt progress towards:

1. Economic Goals (SDGs 8, 9, 10): Decades of economic regulations would be thrown into uncertainty.
2. Social Goals (SDGs 1, 2, 3, 4, 5): Public health, safety, and welfare programs would be at risk.
3. Environmental Goals (SDGs 6, 7, 11, 12, 13, 14, 15): Foundational environmental protections could be eliminated overnight.

3. A Proposed Solution: Prospective Overruling for Institutional Sustainability

To address the governance challenge without causing systemic disruption, a method of prospective overruling is recommended. This approach allows for a gradual and stable transition towards a more accountable institutional framework, consistent with the principles of sustainable development.

3.1. Core Principles of the Methodology

• Maintains Stability: Past legislation and regulations remain in effect, preserving the reliance of citizens and institutions and ensuring continued progress on all SDGs.
• Enforces Future Accountability: All future legislation would be subject to a stricter standard, requiring legislatures to make key policy choices explicitly. This directly supports SDG 16.
• Promotes Incremental Adaptation: The approach allows both federal and state institutions time to adapt to their proper constitutional roles, fostering institutional resilience and strengthening federalism.

4. A New Standard for Legislative Action Aligned with SDG Principles

A renewed standard is required to distinguish between permissible executive implementation and impermissible legislative delegation. This distinction is fundamental to restoring the integrity of institutions as envisioned in SDG 16.

4.1. Delineating Institutional Roles

The proposed standard enforces the formal distinction between making law and executing it:

1. Legislative Power (Policymaking): Congress must establish the generally applicable rules and make the key policy choices. This aligns with its role as a representative body (SDG 16.7).
2. Executive Power (Implementation): The executive branch may be granted authority to fill in factual details, apply the law to specific facts, and manage technical measures, ensuring the effective functioning of government (SDG 16.6).

4.2. Institutional Incentives for Better Governance

Adopting this standard prospectively creates a dynamic that encourages better governance and more effective legislative action.

• Legislatures will be incentivized to draft more precise and comprehensive laws to ensure their effectiveness.
• Legislative bodies can develop greater institutional capacity and expertise, improving the quality and responsiveness of policymaking.
• The judicial branch’s role is clarified, providing a clear warning to lawmakers and reducing the need for disruptive interventions.

5. Conclusion: Restoring Constitutional Balance to Achieve the 2030 Agenda

Reforming the doctrine of delegation through prospective overruling offers a viable path to strengthen the rule of law and build the effective, accountable institutions central to SDG 16. This approach does what other reforms cannot: it restores the separation of powers at the point of law creation. By applying a stricter principle only to future actions, this method respects past reliance while promoting a governance regime that is more faithful to constitutional principles and better equipped to achieve the comprehensive and ambitious goals of the 2030 Agenda for Sustainable Development.

Sustainable Development Goals (SDGs) Addressed in the Article

SDG 16: Peace, Justice and Strong Institutions

• The article is fundamentally concerned with the structure and function of governmental institutions, which is the core of SDG 16. The entire discussion revolves around the principle of separation of powers, the proper roles of the legislative, executive, and judicial branches, and the need to build effective and accountable institutions that operate under the rule of law. The text analyzes how the “delegation of unguided power to the executive undermines the separation of powers” and proposes a method of “prospective overruling” to “restore the separation of power structure.” This directly relates to building effective and accountable institutions at the national level.

Specific Targets Identified

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

   The article directly addresses the promotion of the rule of law by discussing the judicial enforcement of constitutional principles. The author argues that structural provisions of the Constitution “should be enforced even when they pose similar difficulties” as rights provisions. The debate over the nondelegation doctrine and the role of the Supreme Court in policing the boundaries between legislative and executive power is a clear effort to strengthen the rule of law within the national government.

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

   This is the most prominent target in the article. The author critiques the current “permissive delegation doctrine” for allowing Congress to pass vague laws, which reduces its accountability and effectiveness. The proposed solution aims to force Congress to “legislate more comprehensively” and make “key policy choices” itself, rather than delegating them to executive agencies. The suggestion that Congress can “undertake institutional reforms to be in a better position to do so,” such as establishing its own expert agencies, is a direct call for developing more effective and accountable institutions.

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

   The article’s central argument supports this target by advocating for the primary lawmaking power to reside with Congress, the most representative branch of the federal government. The critique of delegating policymaking to executive agencies is rooted in the idea that such agencies are not directly representative of the people. By insisting that Congress, as the elected body, must “make the key policy choices,” the author advocates for a more representative decision-making process, where laws governing the public are made by their elected officials.

Indicators for Measuring Progress

The article is theoretical and does not mention official quantitative indicators. However, it implies several qualitative and procedural indicators that could be used to measure progress towards the identified targets:

1. Clarity and Specificity of Legislation:

   An indicator for progress towards Target 16.6 would be the degree to which new statutes passed by Congress contain specific policy rules and details, as opposed to granting “open-ended discretion” to executive agencies. The article suggests a test where a statute is valid only if it “allows the executive only to fill in technical details and find facts,” not make broad policy. Measuring the reduction in broad delegations would indicate progress.

2. Judicial Enforcement of Separation of Powers:

   For Target 16.3, a key indicator would be the frequency and consistency with which the judiciary, particularly the Supreme Court, enforces the nondelegation doctrine. The article advocates for a “stricter nondelegation principle” and argues that courts should “enforce the Constitution even when such enforcement requires nice judgments.” An increase in judicial review of legislative delegations would serve as an indicator of strengthening the rule of law.

3. Development of Legislative Institutional Capacity:

   As a measure for Target 16.6, an indicator would be the establishment or enhancement of institutional support structures within the legislative branch. The article explicitly states that Congress “can establish its own expert agencies in subject-matter areas to advise it, thereby gaining the knowledge needed for more precise drafting.” The creation and funding of such bodies would be a tangible indicator of progress.

Summary Table: SDGs, Targets, and Indicators

Source: lawliberty.org