As of this week, it is now illegal to unlock your smartphone. Okay, that’s bad in and of itself, but what’s worse is how it happened:
Did Congress quietly pass a bill prohibiting smartphone unlocking and send it to President Obama’s autopen? No. What happened was the Librarian of Congress was empowered by the execrable Digital Millennium Copyright Act to decide what modifications of our own electronic devices we are permitted to perform. In short, Congress delegated the power to make law to this functionary, and last October he exercised his power to prohibit smartphone unlocking.
It is supposed to be unconstitutional for the Congress to delegate its legislative power, but the courts have been permitting it for a long time, provided Congress provides an “intelligible principle” for the delegate to use. This is a very bad thing.
It’s bad because the bar for an “intelligible principle” is now so low as to be meaningful. But more importantly, it’s bad because the limits of Congress’s time ought to be a safeguard against tyranny, but it’s not.
It used to be that Congress was a part-time job, but the workload of the average Congressional office has doubled every five years since 1935 (according to Senator James Buckley). That means more and more laws to burden the American people.
One might think that the absolute limit of 168 hours per week would cap the amount of rules that our legislature could generate, but not if they can delegate rule-making power to others. With delegated power, the government’s ability to generate new rules is literally unlimited.
With a limit, the government would be compelled to use its power selectively, and only address high priorities. Without a limit, government issues rules for absolutely the most trivial matters. (Yes, even for spilled milk.)
There ought to be no rule binding the American people that is not passed by Congress and signed by the president (or passed over his veto). This wouldn’t ensure that Congress would exercise good judgement, but at least it would require them to set priorities, and we could hold them accountable for every rule on the books.
UPDATE: Corrected the Congressional workload doubling period.