But Kagan is not wrong to affirm the legislature’s need to entrust the executive apparatus with certain discretionary questions about how a law is enforced. That is how governance works, and it is why we have an executive branch. It is difficult to get delegation just right. But convenience, no matter how needful, is not an unrestricted license. Congress cannot simply pass a law declaring “Americans shall have good health care, and the secretary of health and human services is hereby empowered to do what is necessary to make that happen.” A little more work is necessary. The so-called Affordable Care Act was a litany of “the secretary shalls.” Some of those delegated powers were very broad, for example the power to provide exemptions to certain parties (favored political constituencies, inevitably) from parts of the law. That is one of the reasons why it has failed, and why it remains controversial. That kind of delegation begins to resemble lawlessness, or at least arbitrariness in government, which amounts to much the same thing.

[Post edited by JMHoo at 06/24/2019 08:50AM]