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Non delegationdoctrineand “quasi-constitutional” statutesIntroduction 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: 785
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