Non delegationdoctrineand “quasi-constitutional” statutes

Introduction

t Under current doctrine, there are very few, if any, constitutional restraints on Congress’s power to delegate.

t Historical conventional understanding – that Congress is exclusive lawmaker – no longer reflects reality. In every industrialized nation, administrative agencies (part of executive branch) have been granted considerable lawmaking power.

t Possible reasons why Congress delegates broad discretionary power to administrative agencies:

n Administrators have necessary expertise

n Area changes rapidly

n Severe political costs to precise solutions of problems; no such costs attach if Congress merely identifies problem and asks administrators to solve it.

n Only an administrative agency staffed by experts and combining legislative, adjudicative, and executive authority has flexibility to engage in regulatory and redistributive activity necessary in a post-New Dealregulatory state.

t Constitutionality of broad delegations of discretionary power to administrative agencies.

n Some argue that such delegations violates original constitutional structure by allowing combination of legislative and executive power.

n Others argue there is no historical basis for this view, and that early congresses often delegated discretionary power to the executive.

n Our opinion here may depend on our position over extent to which government interference with “private” economic ordering is constitutionally permissible. Two views:

(1) Framers created sharp divisions between legislative and executive authority in order to make such interference difficult.

(2) Framers left questions about substantive ends of government to democratic processes.

Date: 2015-01-02; view: 701