Michele Bachmann's Unconstitutional Light-Bulb Bill

by Daniel Farber

March 03, 2011

Cross-posted from Legal Planet.

Michele Bachmann has introduced legislation to overturn the statute requiring the use of energy-efficient light bulbs, according to E&E News.  One  feature of the bill is its escape valve:

Bachmann’s bill would allow the mandate to stand if the Government Accountability Office can prove the energy efficient bulbs would meet three criteria: that they provide real cost savings for consumers, significantly reduce carbon dioxide emissions and do not produce health risks for consumers. . .

“Frankly, I would be surprised if the GAO can prove these criteria, but at minimum, my bill will provide the opportunity to examine these important issues,” she added. “The American people want less government intrusion into their lives, not more, and that includes staying out of their personal light bulb choices.”

Why is this GAO escape-valve unconstitutional?  The answer stems from the fact that the General Accountability Office is part of the legislative branch.  As GAO’s website says:

The U.S. Government Accountability Office (GAO) is known as “the investigative arm of Congress” and “the congressional watchdog.” GAO supports the Congress in meeting its constitutional responsibilities and helps improve the performance and accountability of the federal government for the benefit of the American people.

The Supreme Court has made it clear that Congress cannot delegate authority to its own subordinates.  According to the Bowsher decision, delegation to legislative officials is unconstitutional because only the executive branch can take part in administering laws.  Otherwise, Congress would be in a position to aggrandize its own powers at the expense of the President.  Congress can repeal the light bulb requirement (or not).  It can mandate that an executive agency like DOE or EPA decide the three issues specified by Bachmann.  But Congress can’t make the validity of the light bulb requirement turn on a determination by GAO.

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Daniel A. Farber is the Sho Sato Professor of Law, Director of the California Center for Environmental Law and Policy, and Chair, Energy & Resources Group, University of California, Berkeley.

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