Abstract
As it will be argued in this chapter of the book, classical constitutional law incorporated the conceptual assumptions from which the notion of delegation derives. Locke’s argument is, in this respect, exemplary of the philosophical presuppositions of classical constitutionalism. It justifies and explains in point of theory premises and distinctions that later reflected themselves in actual legal practices.
Keywords
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Liberty and property…it is the English call…it is the call of nature.
- 2.
Cited by Wilhelm Röpke, The Social Crisis of Our Time (New Brunswick, New Jersey: Transaction Publishers, 2004), p. 193 “Le gouvernement en dehors de sa sphère ne doit avoir aucun pouvoir; dans sa sphère il ne saurait en avoir trop.”
- 3.
See generally the volume contributions in Bogdan Iancu, The Law/Politics Distinction in Contemporary Public Law Adjudication (Utrecht & Portland, OR: Eleven International Publishing, 2009).
- 4.
Ernst Forsthoff, “Begriff und Wesen des sozialen Rechtsstaates”, in Ernst Forsthoff (Ed.), Rechtsstaatlichkeit und Sozialstaatlichkeit-Aufsätze und Essays (Darmstadt: Wissenschaftliche Buchgesellschaft, 1968), p. 165 ff.
- 5.
In Dieter Grimm, “Europäisches Naturrecht und Amerikanische Revolution—Die Verwandlung politischer Philosophie in politischer Techne,” Ius Commune III (1970), 120–151, at p. 146.
- 6.
Id., p. 123.
- 7.
Second Treatise, Par. 41.
- 8.
Willard Hurst 1967, at p. 4.
- 9.
Dieter Grimm, Recht und Staat der bürgerlichen Gesellschaft (Frankfurt a. M.: Suhrkamp, 1987), passim.
- 10.
For instance, Kenneth Culp Davis opens his Administrative Law Treatise, a classic in the field, with long vituperations against the doctrines of the separation of powers, the rule of law, and nondelegation, all labeled dismissively as useless “philosophical thinking”: “[p]hilosophical thinking has been a barrier to the developments of administrative law and has contributed little or nothing that is affirmative.” (San Diego: K. C. Davis Pub. Co., 1978–1984), Chapter 2-“Philosophical Foundations.” See for instance at §2: 6, describing the notion of separation of powers as “an empty receptacle for answers that have to be invented” and claiming in essence that… Montesquieu was wrong. See, for a more balanced contemporary treatment, Jerry L. Mashaw, Richard A. Merril, Peter M. Shane, Administrative Law-The American Public Law System: Cases and Materials (Mashaw et al.) (St. Paul, Minn.: West, c2003), Chapter 2-“The Legislative Connection,” esp. pp. 59–49.
- 11.
See, for instance, a good and relatively recent breakdown of delegation-related issues and positions in contemporary U.S. constitutional and administrative law, in The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives, Symposium 20 (3) Cardozo Law Review (January 1999).
- 12.
Both Panama Refining and Schechter Poultry were rendered in 1935. A year later, in 1936, the Bituminous Coal Conservation Act of 1935 (the former Bituminous Coal Code, enacted as federal statute by Congress after the demise of the NIRA) was declared unconstitutional, primarily on Commerce Clause grounds but also because of delegation reasons, in Carter v. Carter Coal Co. 298 U.S. 238 (1936). These developments happened before the so-called “shift in time that saved nine” of 1937, that is, before the Supreme Court reversed its ‘conservative’ pre-New Deal positions (most notably on economic due process and the scope of the Commerce Clause), thus averting FDR’s “Court-Packing Plan.” Given this inauspicious constitutional context, John Hart Ely notably opined that the post-New Deal demise of the nondelegation doctrine was primarily a matter of “death by association.” (John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980), at p. 133). See Douglas Ginsburg, “Delegation Running Riot,” (reviewing Schoenbrod, Power Without Responsibility) 18 (1) Regulation 83 (1995): “So for 60 years the nondelegation doctrine has existed only as a part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restauration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes.”
- 13.
Paul Verkuil, “The American Constitutional Tradition of Shared and Separated Powers: Separation of Powers, the Rule of Law and the Idea of Independence,” 30 William and Mary Law Review 301 (Winter, 1989), at p. 319.
- 14.
“No matter how many times it gets broken, beaten, or buried, it just keeps on going and going.” Gary Lawson, “Delegation and Original Meaning,” 88 Va. L. Rev. 327 (April, 2002), at p. 330.
- 15.
Carl Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America (Waltham: Blaisdel, c1968) 4th ed., at p. 28.
- 16.
Encompassing the “set of principles, manners, and institutional arrangements that were used traditionally to limit government,” Sajó 1999, at xiv.
- 17.
Edward Corwin’s commentary on the amending provisions of Art. V is very indicative of the American understanding of constitution and constitutionalism: “The amending, like all other powers organized in the Constitution, is in form a delegated, and hence a limited power… the one power known to the Constitution which is not limited by it is that which ordains it- in other words, the original, inalienable power of the people of the United States to determine their own political institutions.” (emphasis supplied), The Constitution and What It Means Today (Princeton: Princeton University Press, 1946), at p. 141. For a good exposition of the American ‘constitutional exceptionalism’ and an insightful comparison of American and early European constitutionalism, see Martin A. Rogoff, “A Comparison of Constitutionalism in France and the United States,” 49 Me. L. Rev. 21 (1997), pp 31–32: “In America the idea of constitutionalism is intimately attached to, and in fact inseparable from, the actual written constitution of the country. Constitutionalism is not a vague concept calling for the separation and limitation of public power, the rights of the governed, and adherence to certain time-honored procedures, customs, and values. It has rather an immediacy and a tangibility, and an association with a particular document, which is usually lacking even in other constitutional democracies.”
- 18.
“[T]he Constitution is a charter of negative rather than positive liberties. The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much for them.” Posner, J., Jackson v. City of Joliet 715 F.2d 1200, 1203 (1983), certiorari denied 465 U.S. 1049 (1984) (failure by state officers to rescue individuals from a burning car, even if it amounts to reckless negligence, does not amount to a constitutional tort under the Fourteenth Amendment’s Due Process Clause, as a deprivation of life without due process). By ‘negative’ I understand primarily concerned with limitations, constraining. By ‘jurisdictional’ I understand that the limitations, primarily those on legislation, are in principle ascertainable in a court of law. In line with the contractualist tradition which informed the Founders, Government as such was arguably perceived as an instrument of limited purposes, limited, that is, by the original compact and the triad of pre-political or ‘natural’ rights, life, liberty, property (the analogy with Locke’s theory is too evident to be restated). The distinction has become eroded as a matter of practices, as we shall see in due course, after the New Deal. In terms of political theory, it has come under attack since the Progressive Era, after the Civil War. See, for instance, a more recent example of questioning the validity of the distinction between positive and negative constitutionalism and positive and negative rights, Stephen Holmes and Cass Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New York: Norton, 1999), whose title is fairly revealing of the main thesis. As a question of actual constitutional law, the qualification of ‘negative constitutionalism’ applied to the U.S. Constitution holds true; in this vein, for an elaboration and an illuminating comparison with contemporary German constitutionalism, see David P. Currie, “Positive and Negative Constitutional Rights,” 53 U. Chi. L. Rev. 864 (Summer, 1986), showing that the Supreme Court has consistently refused to recognize third party effects or affirmative state obligations related to the rights guarantees outside active government aggression, unless a ‘positive’ governmental obligation is directly and inextricably related to the exercise of a negative (defense) right and triggered by intrusive governmental action.
- 19.
Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer, transl. George Lawrence (New York: Harper Perennial, 1988), p. 270.
- 20.
U.S. 137 (Cranch) (1803). The understanding that the Constitution would need to be a judicially enforceable charter arguably predates the decision; an argument much akin to Justice Marshall’s in Marbury can be found in The Federalist, No. 78 (Alexander Hamilton).
- 21.
Henry P. Monaghan, “Marbury and the Administrative State,” 83 Colum. L. Rev. 1 (January, 1983), at 32.
- 22.
Marbury v. Madison, 5 U.S. 137 (Cranch) (1803), at pp. 176–177 “This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it….”
- 23.
I am using the phrase “jurisdiction of the legislature,” to a certain extent, by way of stylistic licence, even though the use is not totally improper in the context of our discussion. See, for instance, Barber 1978, at p. 29: “Why should [the maxim delegata potestas non potest delegari] be applicable to delegations of ‘jurisdiction’ and not to delegations of legislative power? Is not any delegation of rule-making power a delegation of jurisdiction in some sense and to some degree?”
- 24.
The Cargo of the Brig Aurora, Burn Side, Claimant, v. The United States, 11 U.S. (7 Cranch) 382 (1813).
- 25.
“But Congress could not transfer the legislative power to the President. To make the revival of a law depend upon he President’s proclamation, is to give to that proclamation the force of a law.” Id., at 386 (argument for the Appellant).
- 26.
“On the second point, we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct.” Id. at 388.
- 27.
See, for instance, the historical overview in David Schoenbrod, Power Without Responsibility: How Congress Abuses the People through Delegation (New Haven, CT.: Yale University Press, 1993), pp. 30–31. But see Posner and Vermeule 2002, at 1737–1738: “Nothing in The Brig Aurora endorses the delegation metaphor; if anything, the Court’s terse dismissal of the claim suggests the absence of constitutional limits on statutory grants to the executive.” According to the authors, “[t]he nondelegation metaphor, rather, was a legal theory of uncertain provenance that skulked around the edges of nineteenth-century constitutionalism, and wasn’t adopted by the Court until 1892.” (At 1737.) Nonetheless, considering the actual wording of the decision, where the delegation argument is engaged and not dismissed out of hand as either strange or impervious, this latter, radically alternative interpretation, is unwarranted.
- 28.
Joseph Story offers an elaborate account of the Latin maxim delegata potestas non potest delegari in his book on agency law: “One, who has a bare power or authority from another to do an act, must execute it himself, and cannot delegate his authority to another; for this being a trust or confidence reposed in him personally, it cannot be assigned to a stranger, whose ability and integrity might not be known to the principal, or, if known, might not be selected by him for such a purpose…The reason is plain; for, in each of these cases, there is an exclusive personal trust and confidence reposed in the particular party. And hence is derived the maxim of the common law; Delegata potestas non potest delegari.” Commentaries on the Law of Agency as a Branch of Commercial and Maritime Jurisprudence, with Occasional Illustrations from the Civil and Foreign Law (Boston: Little, Brown, 1839), § 13. The agency law principle, in Story’s rendition, establishes a rebuttable presumption against subdelegation. Namely, delegated authority—especially when conferred in view of the agent’s special fitness—cannot, in principle, be re-delegated, unless this power is expressly conferred on the agent or can be fairly implied, for instance, from the terms of the agreement or the usages of the particular trade. That is apparently still the law, 1 Restatement of the Law of Agency Second (St. Paul, Min.: American Law Institute Publishers, 1958), § 18: “Unless otherwise agreed, a person cannot properly delegate to another the exercise of discretion in the use of a power held for the benefit of the principal.” Story does not transpose the agency law maxim into the field of public law in his constitutional Commentaries, perhaps since he would have understood it essentially as an inference from an overly doctrinaire or, in modern categories, ‘formalistic’ understanding of the principle of separation of powers. Story was, like Madison, a strong advocate of a position which comes closer to what nowadays is called separation of powers “functionalism.” According to Story, in an argument similar to Madison’s in The Federalist 47, the principle can be reduced to a requirement that “the whole power of one of these department should not be exercised by the same hands which possess the whole power of either of the other departments.” Lest that would happen, institutional autonomy and mutual checks are the best safeguards of the initial allocation; power counteracts power. See Commentaries on the Constitution of the United States (Boston: Little, Brown, and Company, 1891(1833)), Vol. 1, Book III, Chapter VII, “Distribution of Powers,” pp. 388–406, § 525.
- 29.
Thomas McIntyre Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, and Company, 1868), p. 137.
- 30.
Posner and Vermeule 2002, at pp. 1728–1729, defending the ‘naïve view’ according to which “a statutory grant of authority is not a delegation”; in the authors’ view, the Constitution supports solely a minimalist nondelegation rule, based on which only the delegation of an individual legislator’s voting rights would be deemed unconstitutional. See also Eric A. Posner and Adrian Vermeule, “Nondelegation: A Post-Mortem,” 70 U. Chi. L. Rev. 1331 (Fall 2003). Compare and contrast, Larry Alexander and Saikrishna Prakash, “Reports of the Nondelegation Doctrine’s Death Are Greatly Exaggerated,” 70 U. Chi. L. Rev. 1297 (Fall 2003).
- 31.
Hans A. Linde, “Structures and Terms of Consent: Delegation, Discretion, Separation of Powers, Representation, Participation, Accountability,” 20 Cardozo L. Rev. 823 (1998–1999), pp. 849–850.
- 32.
Frankfurter, J., concurring in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68 (1943).
- 33.
Dig. I. 21. 1, De officio eius, cui mandata est iurisdictio (Duties of One to Whom Jurisdiction is Delegated): “Papiniano libro primo quaestionum. Quaecumque specialiter lege vel senatus consulto vel constitutione principum tribuntur, mandata iurisdictione non transferuntur; quae vero iure magistratus competunt, mandari possunt.” (“Any powers specially conferred by statute or senatus consultum or imperial enactment are not transferable by delegation of a jurisdiction. But the competence attached to a magistracy as of right is capable of delegation.”) Dig. I. 21. 5. “Paulus libro octavo decimo ad Plautium. Mandatam sibi iurisdictionem mandari alteri non posse manifestum est. Mandata iurisdictione privato etiam imperium quod non est merum videtur mandari, quia iurisdictio sine modica coercitione nulla est.” (“It is obvious that one cannot delegate to another a jurisdiction which one holds by delegation. When a jurisdiction is delegated to a private citizen, it seems that there is also delegated a power of imperation, albeit not a pure one; for there is no such thing as a jurisdiction without some modicum of coercive power.”) The example is given (Dig. I. 21.1.) of the praetor not being able to delegate, when allegation is made that a master has been murdered by his slaves, the task of hearing the case, since jurisdiction over such cases is delegated to him by a senatus consultum.
- 34.
Dig. II.1.3 (Ulpianus libro secundo de officio quaestoris): “Merum est imperium habere gladii potestatem ad animadvertendum facinorosos homines, quod etiam potestas appellatur.” (“To have simple imperium is to have the power of the sword to punish the wicked and this is also called potestas.”) A transfer of jurisdiction would carry a transfer of mixed imperium, since a certain measure of coercion (for instance, the power to impose a fine) was considered as entailed by an exercise of jurisdiction). See, more generally, one these issues, David Johnston, “The General Influence of Roman Institutions of State and Public Law,” in D. L. Carey Miller and R. Zimmermann, eds., The Civilian Tradition and Scots Law. Aberdeen Quincentenary Essays [Schriften zur Europäischen Rechts- und Verfassungsgeschichte, Bd. 20] (Berlin: Duncker & Humblot, 1997), pp. 87–101.
- 35.
Parker v. Commonwealth, 6 Barr. 507. 515, 10 Law Rep. 375 (Pa. 1847), Pennsylvania decision which held unconstitutional, on nondelegation grounds, a local option law which authorized the citizens of a number of counties to decide by local ballot whether the sale of liquors in those counties was to be continued.
- 36.
See Patrick W. Duff and Horace E. Whiteside, “Delegata Potestas Non Potest Delegari: A Maxim of American Constitutional Law,” 14 Cornell L. Q. 168 (1928–1929).
- 37.
Id., at 173.
- 38.
Marbury v. Madison, 5. U.S. 137, 177.
- 39.
Jaffe also dismissed the Whiteside-Duff thesis with characteristic deftness: “But the judges have, I think, merely seized on a convenient legal formula to express the underlying thought of Locke that ‘the legislature neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have.’…If it be thought that the judges were reading the ‘vesting’ provision itself, pursuant to the maxim, it may be replied that a maxim enforced by Coke, Story, and Kent over the course of 400 years is far more relevant to the interpretation of a modern document than an unknown reading of a thirteenth century text.” Louis Jaffe, Judicial Control of Administrative Action (Boston, Toronto: Little, Brown, and Company, 1965), at p. 54. See also comments in Barber 1978, at pp. 26–30.
- 40.
The Supremacy Clause (Art. VI, Paragraph 2) provides that “[t]this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”
- 41.
U.S. Constitution, Article I, Section 1.
- 42.
James Hart, “Limits of Legislative Delegation,” 221 Annals of the American Academy of Political and Social Science (1941) 91: “Certainly it cannot honestly be denied that this principle (that the creatures of the Constitution may not in their discretion alter its allotment of powers) is necessarily implicit in the constitutional allotment. To deny this would make that allotment meaningless.”
- 43.
Laurence Tribe gives the examples of setting up a special agency outside Congress to ratify treaties (contrary to the requirement of Article II, Section 2, that treaties become effective only upon senatorial ratification by a two thirds majority of present Senators) and setting up a “Federal Court of Impeachment” (contrary to Art. I, Section I “The Senate shall have the sole Power to try all Impeachments”), American Constitutional Law, 2nd ed. (Mineola, New York: The Foundation Press, 1988), § 5–17, at p. 363.
- 44.
Id.: “An agency exercising delegated authority is not free, as is Congress itself, to exercise its authority to pursue any and all ends within the affirmative reach of federal authority. Rather, an agency can assert as its objectives only those ends which are connected with the task that Congress created it to perform. The open-ended discretion to choose ends is the essence of legislative power; it is this power which Congress possesses but its agents lack.” See also James Hart, The Ordinance Making Powers of the President of the United States (Baltimore: The Johns Hopkins Press, 1925), for a similar nondelegation argument: there is a constitutionally supported difference between a. legislative power, an almost “full discretion in the premises” and b. “co-legislative power,” “discretion as to subordinate premises only.” Delegatus non potest delegare (delegata potestas non potest delegari) would apply only to a. but not to b.
- 45.
Barber Sotirios, The Constitution and the Delegation of Congressional Power (Chicago and London: The University of Chicago Press, 1978).
- 46.
A similar argument in comparative law was given, in an insightful little exercise in logical positivism, by the Danish philosopher and jurist Alf Ross (“Delegation of Power-Meaning and Validity of the maxim delegata potestas non potests delegari” 7 American Journal of Comparative Law 1 (1958)). In light of his general jurisprudential project of freeing law and legal thinking from the pernicious influence of metaphysics, the Scandinavian Legal Realist scholar was at the same time puzzled and irked by the persistence in constitutional thought of a notion without (or with scant) support in positive law, which moreover eluded easy definition: “[D]elegation does not appear to be regarded as a functional legal concept, defined by certain observable criteria, but rather as a kind of magical act, the transfer of a magical force, the very ‘power to legislate.’ The question is not presented as an inquiry as to the legal criteria defining the term ‘delegated legislation’ (introduced to describe certain juristic acts) but rather as a question whether a juridical magic transfer of power of this kind is in fact possible or not. The maxim delegata potestas non potest delegari seen from this angle assumes more the character of an axiomatic truth, a juridical magic law of nature, rather than of an empiric rule of law, conditioned like other rules of law by time and space.” (at p. 11) Ross’s solution is treating the problem of legislative limits “not in general terms but in relation to the text, presuppositions, and principles of the various constitutions, each in its historical setting.” (p. 21) Ross’s analysis is ultimately flawed, nonetheless, to the extent that, in an application of his more general theoretical position to the Danish Constitution, he presents as an evident and unproblematic nondelegation limit on the legislature, inferred from Section 63 (courts are competent to review the legality of all administrative acts, including rules pursuant to law): “a prohibition against delegation of such indefiniteness that judicial review is eluded.” As we shall see in due course, however, the delegation-related aspects of normative indeterminacy in modern statutory interpretation are not at all unproblematic exercises of judicial review.
- 47.
Thus, Congress can make an ‘experimental’ delegation, incidental to making a future choice, and the delegation would be constitutionally ‘saved’ by a mandatory review and reenactment provision (‘sunset’ clause), which binds Congress as an institution and goes through the same legislative process as the initial enactment (bicameralism and presentment): “Through a permissive interpretation of the delegation doctrine, however, delegations from congressional irresolution could be constitutional—at least when measured by the minimal values supporting the rule—if they could be interpreted as instruments of policy decisions yet to be made. A statutory provision for mandatory review and reenactment could be presumptive evidence that Congress had committed itself to decide eventually the issues delegated.” (Barber 1978, at pp. 123–124). Barber was aware of the fact that, in the logic of his version of nondelegation, congressional legislative indecision could not be compensated by other methods of review (in his enumeration, the [now defunct] legislative veto, committee oversight, appropriations process), since these methods of control, as substitutes to legislative policy indecision, according to the terms of his nondelegation theory, would pose delegation problems of their own. In view of future formalistic decisions (most notably INS v. Chadha and Bowsher v. Synar), Barber Sotirios’s diagnosis proved to be a good foretelling of doctrinal evolution, even though partially and in a somewhat obverse manner: “[A]s Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly-by passing new legislation.” Bowsher v. Synar, 478 U.S. 714, 733 (1986) (opinion of the Court, per Burger, C.J.). By ‘obverse manner’ I understand that Supreme Court separation of powers ‘formalism’ did not directly force Congress to make specific legislative decisions (as Barber’s preferred version of the doctrine would have it) but limited Congress’s legislative power to the decision made at the time of the enactment, without possibility for further adjustments compensating for the initial delegation-indecision, short of the full-fledged Art. I Section 7 legislative process.
- 48.
Since this version of nondelegation review is primarily about regulating legislative processes, an analogy could also be drawn with Judge Hans Linde’s “due process of lawmaking” approach to the Due Process Clause of the Fifth and Fourteenth Amendments. As commonly known, the Clause protects individuals against federal government (and, respectively, state) deprivation of “life, liberty, and property, without due process of law.” In a 1976 article (“Due Process of Lawmaking,” 55 Nebraska Law Review 197 (1976)), Linde observed that the tests applied by the Supreme Court in substantive due process rationality review are focused on the rationality of the means-ends correlation, whereas—in his view—the real question to be asked was one of legitimacy (i.e., is the choice—the statutory purpose—a legitimate one?), the problem of substance (legitimacy of ends pursued) could be conceptually distinguished from the matter of process, and—last but not least—the Due Process Clause, just as it reads, is primarily concerned with process, not substance. Therefore, asking the due process constitutional question in an instrumentalist key struck him as incorrect and he proposed instead focusing the judicial quest on policing the rationality and consistency of legislative processes.
- 49.
Par. 141. See discussion supra.
- 50.
Tribe 1988, at p. 368, note 26.
- 51.
See, for instance, Sunstein, “Constitutionalism after the New Deal,” 101 Harvard Law Review 421, 423 (December, 1987), speaking admiringly about the mutation brought about by “the New Deal reformers, [for whom] the common law was neither natural nor prepolitical.” For Sunstein, quite expectedly given his more general thesis regarding the socially and legally constructed nature of preferences and rights, limitations on government derive from a more abstractly normative understanding of legality. Hence the penchant on attacking private law baselines for public law arrangements; see—for instance—supra, at 426: “One of the greatest ironies of modern administrative law-an area whose origins lay in a substantial repudiation of the common law- is its continuing reliance on common law categories.” Also, in “Lochner’s Legacy,” 87 Colum. L. Rev. 873 (June, 1987), at 875: “Numerous decisions depend in whole or in part on common law baselines or understandings of inaction and neutrality that owe their origin to Lochner-like understandings.”
- 52.
“The power of an administrative agency to administer a congressionally created…program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, at 231. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, at 843–844: “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” See also Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, at 123: “Chevron deference is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to fill in the statutory gaps.” Also see Monaghan 1983, at p. 26: “Judicial deference to agency ‘interpretation’ of law is simply one way of recognizing a delegation of lawmaking authority to an agency.”
- 53.
United States v. Robel, 398 U.S. 258, 276 (1967) (Brennan, J., concurring opinion).
- 54.
“The true distinction between [earlier republics] and the American governments lies in the total exclusion of the people, in their collective capacity, from any share in the latter….” The Federalist No. 63 (James Madison) See Gordon S. Wood, The Creation of the American Republic: 1776–1787 (New York: Norton, 1972, c1969), at p. 599: “All parts of the government were equally responsible but limited spokesmen for the people, who remained as the absolute and perpetual sovereign….”
- 55.
An interesting survey of state decisions on delegations to voters is provided in Duff and Whiteside 1928–1929. For instance, in Rice v. Foster 4 Harr. 479 (Delaware 1847), one of the earliest cases of this kind, the following reasons are given by the state supreme court for striking down on nondelegation grounds a local option temperance law: “The proposition that an act of the legislature is not unconstitutional unless it contravenes some express provision of the constitution is, in the opinion of this court, untenable….An act of the legislature directly repugnant to the nature and spirit of our form of government, or destructive of any of the great ends of the constitution, is contrary to its true intent and meaning; and can have no more obligatory force, than when it opposes some express prohibition contained in that instrument….Wherever the power of making laws, which is the supreme power in a State, has been exercised directly by the people under an system of polity, and not by representation, civil liberty has been overthrown. Popular rights and universal suffrage, the favorite theme of every demagogue, afford, without constitutional control or a restraining power, no security to the rights of individuals, or to the permanent peace and safety of society. In every government founded on popular will, the people, although intending to do right, are the subject of impulse and passion; and have been betrayed into acts of folly, rashness, and enormity, by the flattery, deception, and influence of demagogues.” Compare, nonetheless, with a contemporaneous Illinois decision upholding a law which made a division and redistricting of a county contingent on local option: “The extent to which this maxim should be applied to a legislator depends upon a proper understanding of legislative powers; upon a proper determination of what may legitimately be done in the exercise of those powers. Is it easy to say that it is the business of the legislature to make laws; but then we must inquire, what kind of laws may be made? Must they be full, complete, perfect, absolute, depending upon no contingency and conferring no discretion?” People v. Reynolds 10 Ill. 1 (1849).
- 56.
See for instance John F. Manning, “The Nondelegation Doctrine as a Canon of Avoidance,” 2000 Supreme Court Review 223, 239: “More specifically, Art. I, Section 7 filters congressional lawmaking powers through the carefully structured process of bicameral passage and presentment to the President. By dividing legislative power among three relatively independent entities, that intricate and cumbersome process serves several crucial constitutional interests: it makes it more difficult for factions (or, as we would put it, ‘interest groups’) to capture the legislative process for private advantage, it promotes caution and restrains momentary passions, it gives special protection to the residents of small states through the states’ equal representation in the Senate, and it generally creates a bias in favor of filtering out bad laws by raising the decision costs of passing any law. The nondelegation doctrine protects those interests by forcing specific policies through the process of bicameralism and presentment, rather than permitting agency lawmaking on the cheap.”
- 57.
The Framers were aware of the trade-off. Madison, discussing the role and value of bicameralism in The Federalist No. 62, argued that, while “the power of preventing bad laws includes that of preventing good ones,” “the facility and excess of law-making seem to be the diseases to which our governments are most liable.” See also No. 73 (Alexander Hamilton), the constitutionally prescribed legislative process guards against the “passing of bad laws through haste, inadvertence, or design.”
- 58.
This position has been most forcefully advanced in recent years by Cass Sunstein, see, for instance, Designing Democracy-What Constitutions Do (Oxford: Oxford University Press, 2001), Chapter 6-Democracy and Rights: The Nondelegation Canons, arguing that the delegation doctrine properly reverts into canons of narrow construction and judicially mandated requirements of clear legislative specification (clear statement) in constitutionally sensitive areas, a “democracy-forcing judicial minimalism”: “What I mean to identify here are the nondelegation canons, not organized or recognized as such, but central to the operation of modern public law in America and many other nations, and designed to ensure clear legislative authorization for certain decisions.” (at p. 138) Sunstein’s position is not without support in the case-law, Mistretta v. U.S., 488 U.S. 361, 374 n7: “In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.” (Blackmun, J.) See also Richard Stewart, “Reformation,” noting use of the technique of narrow construction of statutes (as opposed to invalidation of congressional enactments: delegation used for ‘nullification’ purposes) as a nondelegation-related practice of the “post-nondelegation doctrine” Court: “Third, courts began to demand a clear statement of legislative purpose as a means of restraining the range of agency choice when fundamental individual liberties were at risk…The technique is more discriminating than the nondelegation doctrine; it substitutes tactical excision for wholesale invalidation.” pp. 1680–1681.
- 59.
See, for instance, Printz v. U.S., 521 U.S. 898, which struck down as unconstitutional provisions of the Brady Handgun Violence Prevention Act which imposed background check requirements on state officers (chief law enforcement officers (CLEOs) of each local jurisdiction); Congress cannot delegate the enforcement of federal law to state officials, unaccountable to the President, at 922: “The Brady Act effectively transfers [the responsibility to ‘take Care that the Laws be faithfully executed’] to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove). The insistence of the Framers upon unity in the Federal Executive-to ensure both vigor and accountability- is well known.” (Scalia, J., opinion of the Court). See also Harold J. Krent, “Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government,” 85 Nw. U. L. Rev. 62 (Fall, 1990).
- 60.
For instance, in National Association of Regulatory Utility Commissioners v. F.C.C. 737 F2d 1095, 1143, n. 41: “Recent years have witnessed a renewal of interest in the traditional role of nondelegation doctrine….As attention to this area of our law grows, it refocuses thought on one of the rationales against excessive delegation: the harm done thereby to principles of political accountability. Such harm is doubled in degree in the context of a transfer of authority from Congress to an agency and then from agency to private individuals. The vitality of challenges to the former type of transfer is suspect, but to the latter, unquestionable.”
- 61.
See also Linde 1999, at p. 847 (note 74): “Much depends, of course, on whether assigning a role to private organizations is characterized as a delegation of public authority or as a legal endorsement of essentially private arrangements. The characterization often reflects unarticulated baselines of public and private functions.” The foundational study on this matter is Jaffe’s “Law Making by Private Groups,” 51 (2) Harvard Law Review 201 (December, 1937).
- 62.
See, for instance, Mistretta v. U.S., 488 U.S. 361, at 371 (Blackmun, J., opinion for the Court): “The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of government.”
- 63.
US Constitution, Article I, Section 1.
- 64.
US Constitution, Article II, Section 1, Clause 1.
- 65.
US Constitution, Article III, Section 1.
- 66.
Roscoe Pound, An Introduction to the Philosophy of Law, pp. 15–16.
- 67.
Hart 1925, at pp. 131–132: “Furthermore, it may be argued that, since Congress has only legislative powers, any power which it delegates to another organ must of necessity be legislative in nature. The logic of such argument is flawless, but it is with the unreality of such formal logic that we disagree. The very nature of government is such that the legislature cannot always decide every detail. It becomes necessary, therefore, for the courts to distinguish between what it must do to fulfill its function and what it may either do or leave to the administrative department in connection with its execution of the law.” See also Edward S. Corwin, The President-Office and Powers 1787–1957 –History and Analysis of Practice and Opinion (New York: New York University Press, 1957), pp. 122–123: “Nor is it sufficient to urge that executive power is a mere capacity to act within limits set by the legislature. For the obvious answer is that, on this assumption too, the maxim against delegation loses all its virtue unless there is some intrinsic limitation to the capacity of the executive thus to act, which again would render the maxim superfluous.”
- 68.
Davis 1978–1984.
- 69.
Art. I, Section 8, Clause 18: “Congress shall have Power…[t]o make all Laws which shall be necessary and proper for carrying into the Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Of course, the present discussion of the Sweeping Clause is relevant to all the nondelegation-relevant debates under review in this chapter.
- 70.
See Scalia, J. dissenting opinion in Mistretta v. U.S., 488 U.S. 361, at 417: “The whole theory of lawful congressional ‘delegation’ is not that Congress is sometimes too busy or too divided and can therefore assign its responsibility of making law to someone else; but rather that a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine—up to a point—how small or how large that degree shall be.” (emphases in original) The delegation question bears precisely on the parenthetical observation “up to a point.”
- 71.
See esp. Second Treatise of Civil Government, § 147, cited in full and commented, supra.
- 72.
“Article II vests ‘the executive power in the president, but only after Article I has given most of the traditional royal prerogatives, or at least a share in them, to one or both houses of Congress.” Forrest McDonald, Foreword, The Constitution and the American Presidency, (Martin L. Fausold & Alan Shank eds., 1991), at ix.
- 73.
“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker….And the Constitution is neither silent nor equivocal about who shall make the laws that the President is to execute. The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States….’” Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 937, 579, 587 (Black, J., opinion for the Court).
- 74.
A good exemplification of the balance theory can be found in Blackstone, 1 (Ch. 2) Commentaries 151, speaking of the benefits of the balance of powers (the two Houses of Parliament and the “crown, which is a part of the legislative, and the sole executive magistrate”): “Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each and formed out of all; a direction constitutes the true line of the liberty and happiness of the community.” See, for a similar argument regarding the two main strands of separation of powers arguments and constraints, Elizabeth Magill, “The Real Separation in Separation of Powers Law,” 86 (2) Virginia Law Review 1127 (September 2000).
- 75.
Tribe 1988, at p. 362. See also Verkuil 1989, at 318: “The courts can review the quality of the delegation, to ensure that legislative power is not unintentionally divested. In this role, the Court acts paternalistically, to protect Congress from itself.”
- 76.
See Cushman 1941, who, not at all surprisingly given the topic of his study, reduces the rule of nondelegation to a matter of due process (discretion confined by standards): “To permit (…) an officer or an agency to exercise legislative power unrestrained by legislative standards is to subject the citizen to the danger of an arbitrary power against which he may have no effective protection. It is but a short step from this to the position that one whose rights have been impaired by the exercise of unrestrained legislative discretion in the hands of an administrative officer or agency is being deprived of liberty or property without the due process of law. In short, the rule against the delegation of legislative power as it is now construed exists not for the purpose of keeping alive an abstract principle of government, but for the purpose of surrounding private rights with a protection just as readily available under the due process clause. In fact, the doctrine of the non-delegability of legislative power could safely be scrapped as long as due process of law remains the effective constitutional guarantee it now is.” Robert E. Cushman, The Independent Regulatory Commissions (New York: Pentagon Books, 1972 (c1941)), pp. 433–434. Now, of course, as such, a constitutional requirement of legislative standards to guide the delegate can serve both structural (balance version) separation of powers purposes and normative (discretion-related) separation of powers considerations. In this respect, compare Skinner v. Mid-America Pipeline, Co., 109 S. Ct. 1726, 1731: “[S]o long as Congress provides an administrative agency with standards guiding its actions such that a court could ‘ascertain whether the will of Congress has been obeyed,’ no delegation of legislative authority trenching on the principle of separation of powers has occurred.”; and American Power & Light Co. v. SEC 329 U.S. 90, 105 “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Private rights are protected by access to the courts to test the application of the policy in light of these legislative declarations.”
- 77.
The void-for-vagueness doctrine supports the same clarity and generality purposes of the rule-of-law version of nondelegation, by requiring, to use Oliver Wendell Holmes’s characteristically terse and eloquent definition that “[a]lthough it is unlikely a criminal will consider the text of law before he murders or steals, it is reasonable that a fair warning be given the world, in language the common world will understand, of what the law intends to do if a certain line is passed.” In McBoyle v. U.S. 283 U.S. 25. To better perceive the correlation, in United States v. L. Cohen Grocery Co. 255 U.S. 81 (1921), a grocer was indicted under a provision of the war time Food Control Act, which made it a federal crime, punishable with imprisonment for up to two years “for any person willfully…to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.” The defendant challenged the constitutionality of the act on nondelegation grounds: Congress had delegated to courts and juries its “legislative power to determine what acts should be held to be criminal and punishable.” The court struck down the provision on void-for-vagueness grounds: Congress had not fixed an ascertainable standard of guilt, adequate to present the accused under the statute with the nature and cause of the accusation against them: “to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of court and jury.” (White, J., opinion of the Court, 255 U.S. 81, 89).
- 78.
U.S. v. Robel, 389 U.S. 258 (1967), 274–275, Frankfurter, J., concurring. See Tribe 1988 § 12–38, “The Problem of Overbroad Delegation,” pp. 1055–1057.
- 79.
See Friedrich Augustus von Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1978 (c1960)), pp. 212–213: “The trouble with the widespread use of delegation in modern times is not that the power of making general rules is delegated but that administrative authorities are, in effect, given the power to wield coercion without rule, as no general rules can be formulated which guide the exercise of such power. What is often called ‘delegation of law-making power’ is often not delegation of the power to make rules—which may be undemocratic or politically unwise—but delegation of the authority to give any decision the force of law, so that, like an act of the legislature, it must be unquestioningly accepted by the courts….It is only when the administration interferes with the private sphere of the citizen that the problem of discretion becomes relevant to us; and the principle of the rule of law, in effect, means that the administrative authorities should have no discretionary powers in this respect.” Also seeThe Road to Serfdom (London: Routledge, 1991, c1944) and Law, Legislation, and Liberty-A New Statement of the Liberal Principles of Justice and Political Economy (London: Routledge, 1993 (c1982)). In the former work, Hayek famously argued that, given the massive exercise of administrative discretion by the administration, pursuant to the open-ended enabling type of legislation characteristic of the twentieth century, the difference between Western democracies and the contemporaneous Nazi Germany or Stalinist Russia was just one of degree. By ‘rules of just conduct’ Hayek understood the traditional tort, contract, property, and criminal law, which coagulated into a framework of clear guidelines for individual action. As I understand his main thesis, the more legislation departs from this model and allows for administrative discretion which interferes with the private sphere of the citizen, the more individual liberty is displaced by legislatively-mandated discretion. Hayek’s preferred model of law is not legislation but common-law, which, by its emphasis on tradition and incremental development by means of analogy and contextual distinctions over time, was, epistemologically, the embodiment of a superior type of rationality than legislation, in Hayek’s opinion, a rationalistic, warped, rigid, one-time exercise in a larger post-Enlightenment project of self-subverting rationality.
- 80.
See his The Morality of Law (New Haven: Yale University Press, 1969).
- 81.
See Lowi, The End of Liberalism-The Second Republic of the United States, 2nd edition (New York and London: Norton, c1979), esp. Chapter 5: “Liberal Jurisprudence: Policy without Law,” pp. 92–126. The thesis, as I understand it, is that the displacement of the rule of law as a law of “authoritative” rules by statutory grants of discretion accompanied by vague standards obfuscated the distinction between politics and law, by rendering the entire political process “tentative” and thus amenable at all its points to bargaining and horse-trading, therefore subject to capture by the most vociferous or powerful interest-groups: “Liberal jurisprudence is a contradiction in terms. Liberalism is hostile to law….Interest-group liberalism has little place for law because laws interfere with the political process….In brief, law, in the liberal view, is too authoritative a use of authority. Authority has to be tentative and accessible to be acceptable. If authority is to be accommodated to the liberal myth that it is no power at all, it must emerge out of individual bargains….Delegation of power provides the legal basis for rendering a statute tentative enough to keep the political process in good working order all the way down from Congress to the hearing examiner, the meat inspector, the community action superviser, and the individual clients with which they deal. Everyone can feel that he is part of one big policy-making family.” pp. 92–93. Also see, by the same author, “Two Roads to Serfdom: Liberalism, Conservatism, and Administrative Power, 36 Am. U. L. Rev. 295 (Winter, 1987).
- 82.
Laurence Tribe’s caveat is, nonetheless, particularly useful here: “But vagueness is not calculable with precision; in any particular area, the legislature confronts a dilemma: to draft with narrow particularity is risk nullification by easy evasion of the legislative purpose; to draft with great generality is to risk ensnarement of the innocent in a net designed for others.” Supra, at p. 1033. See also Colin Diver, “The Optimal Precision of Administrative Rule” 93 Yale L. J. 65 (Nov. 1983), identifying three ‘dimensions’ of rules, “transparency” (the virtue chiefly celebrated by the delegation doctrine), “accessibility” (the degree to which a rule is accessible to its intended audience and “easily applicable to concrete situations without excessive difficulty or effort”), “congruence” (basically, means-ends correlation) and observing that pursuing change on one dimension will usually require a trade-off on another. The necessity of “transparency” – “congruence” tradeoffs is evident prima facie.
- 83.
Stewart’s well-known study identified three periods, roughly, pre-New Deal, New Deal, post-New Deal-especially the 60s and 70s, characterized by three paradigms of administrative law, the traditional (when judicial review was focused on policing and containing discretion), expertise (when judicial deference was justified by the belief in the expertise of the administrator of the statute), and the interest-balancing models of administrative law (judicial review serves the function of reinforcement and balancing of participation or—if you will—representation in administrative rulemaking processes, so that bureaucratic decision making approaches a surrogate micro-legislative process). The periods are slightly overlapping while the ‘models’ of administrative law have to be understood in the Weberian sense of ideal-types, i.e., explanations that give coherence to clusters of judicial review and legislative developments, extracting out of them the dominant paradigm. Richard B. Stewart, “The Reformation of American Administrative Law,” 88 Harv. L. Rev. 1667 (1974–1975).
- 84.
Id., at 1672.
- 85.
See, for instance, Holmes v. New York City Housing Authority, 398 F.2d 262 (1968).
- 86.
Kenneth Culp Davis, Discretionary Justice- A Preliminary Inquiry (Westport, CT: Greenwood Press, 1980 (c1969, by Louisiana University Press)), II-The Rule of Law and the Non-delegation Doctrine, pp. 27–51. See Stewart 1974-1975 arguing that Davis’s derivative version of the doctrine is, unsurprisingly, fraught with the same difficulties, judicial enforcement-wise, as the doctrine itself. See Skelly Wright, Beyond Discretionary Justice (Book Review; reviewing Davis) 81 Yale L. J. 575, 582 (1972): “We need, in short, some standards for when we should require standards.”
- 87.
Id., at pp. 58–59. “I propose that the courts should continue their requirement of meaningful standards, except that when the legislative body fails to prescribe the required standards the administrators should be allowed to satisfy the requirement by prescribing them within a reasonable time….The requirement should gradually grow into a requirement that administrators must strive to do as much as they reasonably can to develop and to make known the needed confinements of discretionary power through standards, principles, and rules. The nondelegation doctrine might also be gradually shifted from a constitutional base to a common law base.” (emphases omitted)
- 88.
Sun-Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Commission, 16 Or. App. 63, 517 P.2d 289 (Or. App. 1973). See comments in Mashaw et al., p. 82. As a matter of federal law, the D.C. Circuit Court of Appeals held, in a 1999 decision, that the Environmental Protection Agency’s failure to limit its statutory discretion under the Clean Air Act by an “intelligible standard” violated the nondelegation doctrine, effecting an unconstitutional delegation of legislative power, and remanded to the agency for adoption of a limiting, permissible construction of the statute (American Trucking Associations, Inc. v United States Environmental Protection Agency, 175 F.3d 1027(C.A.D.C., 1999)) Now, as one can see, even though the issues are related, in terms of constitutional nondelegation constraints, this interpretation has the matter completely the other way around. The Supreme Court reversed, observing, in a characteristically trenchant opinion by Scalia, J.: “In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency….We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute….The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise –that is to say, the prescription of the standard that Congress had omitted- would itself be an exercise of forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency’s voluntary self-denial has no bearing upon the answer.” Whitman v. American Trucking Association, 531 U.S. 457, 472–473 (2001).
- 89.
In “A Theory of Legislative Delegation,” 68 Cornell L. Rev. 1 (1982–1983), a standard public choice treatment of the nondelegation doctrine, Peter H. Aranson, Ernest Gellhorn, and Glen O. Robinson (AGR), argue that the practice of congressional delegations creates ‘public policy lotteries’ (by virtue of the irresolution reflected in vague statutory language, politics is moved down the line into the administration of the statute) and ‘fiscal illusions’ (by not assigning clearly benefits and burdens, the real policy stakes and the actual costs of a given regulatory scheme are obfuscated and delayed, just like in the case of deficit spending) and distributes private goods at public expense. Thus, according to AGR, vigorous enforcement of the nondelegation doctrine would produce more public goods legislation and thus increase aggregate social welfare. But see Jerry L. Mashaw, Greed, Chaos, and Governance-Using Public Choice to Improve Public Law (New Haven, CT.: Yale University Press, 1997), at pp. 143, arguing that, often enough, it is precisely specific legislation which codifies pork barrel transactions, so that “AGR should advocate a constitutional rule which somehow requires that the legislature be limited to specific legislation whenever it wants to be vague, and to vague legislation whenever it finds it easier to be specific.”
- 90.
I was able to find the excerpt from the postal act and the reference to this particular legislative debate in Gary Lawson, “Discretion as Delegation: The ‘Proper’ Understanding of the Nondelegation Doctrine” 73 George Wash. L. Rev. 235 (2005) and Nicholas J. Szabo, “Origins of the Nondelegation Doctrine” (unpublished paper available for download at http://szabo.best.vwh.net/delegation.pdf, last visited August 19, 2005), respectively. The Congressional debates cited here can be found on-line, on the website of the Library of Congress, http://www.memory.loc.gov/ammem/amlaw/lwac.html, Annals of Congress, 2nd Congress, 1st Session, House of Representatives debates, see Post Office Bill, pp. 229–235, 237–242 December 1791.
- 91.
Cong. Sess. I Ch. 16, Act of September 22, 1789, 1 Stat. 70.
- 92.
The act also formally admitted newspapers to the mails and prohibited postal officials from opening letters.
- 93.
Annals of Congress (Library of Congress on-line version, see URL supra) at p. 229.
- 94.
Id., p. 230.
- 95.
Id.
- 96.
Id., pp. 230–231.
- 97.
Id., 233.
- 98.
Id., 236.
- 99.
Id. 238.
- 100.
New York Trust Co. v. Eisner, 256 U.S. 345, 349.
- 101.
An Act Establishing an Executive Department, to be denominated the Department of Foreign Affairs, Act of July 27, 1789, ch. 4, 1 Stat. 28, § 1. The War Department Act, § 1 (Act of August 7, 1789, 1 Stat. 49) contains, mutatis mutandis, almost identical language.
- 102.
Namely, ‘as qualified by the constitutional institutional (structural) arrangements’ (for instance, the Senate foreign affairs role or Congress’s power “to declare war” or “grant letters of marque and reprisal”).
- 103.
See Arthur Bestor, “Separation of Powers in the Domain of Foreign Affairs: The Intent of the Constitution Historically Examined,” 5 Seton Hall L. Rev. 527 (1974), at p. 532: “Executive power signified to Blackstone, as it did to the American framers, those powers of decision and action that can be exercised by a chief executive in his name, simply by virtue of the authority granted directly to him by the constitution or the laws. Though the executive may ultimately be held responsible-by impeachment or repudiation at the polls-for executive decisions made or executive actions carried out, executive powers themselves are almost by definition discretionary, and therefore capable of being exercised without the necessity of submitting a proposed course of action to prior legislative deliberation or approval.”
- 104.
As a matter of political and legal theory, this distinction is usually explained in natural law and the contractarian tradition (the argument comes forth most clearly, though with different emphasis, in both Locke and Hobbes) by the fact that, while the creation of civil government presupposes the giving up of each member’s natural right to wage war within the political community (consequently, all-out conflict is contained within), without, states as such remain in the state of nature (which is potentially a state of war). Blackstone seized on this principle, and adduced it to strengthen the argument, in addition to historical (the Crown’s residuum of power) and prudential (need for unity and strength) considerations: “For it is held by all the writers on the law of nature, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power.” 1 Blackstone’s Commentaries (Ch.7-“Of the King’s Prerogative”) 249.
- 105.
Id., at p. 252.
- 106.
See for instance 1 Blackstone’s Commentaries 255, commenting on “the power vested in his majesty, by statutes 12 Car.II.c.4. and 29 Geo.II.c.16 of prohibiting the exportation of arms or ammunition out of this kingdom, under severe penalties.” In this vein, consider the argument in United States v. Curtiss Wright Export Corporation., 299 U.S. 304 (1936), where the Court considered a delegation challenge to a congressional joint resolution authorizing the President to prohibit or allow, by proclamation, the sale of arms and ammunitions to countries engaged in armed conflict in the Chaco region, if such prohibition—or allowance—“may contribute to the reestablishment of peace.” In a famous opinion, Justice Sutherland (largely in dicta) described attributes of external sovereignty having flowed from the Crown directly to the United States “in their collective and corporate capacity as the United States of America.” The President is declared the foremost actor within the domain of foreign relations: “The President is the constitutional representative of the United States with regard to foreign nations.” (at 319) Indication of the policy to be followed was deemed to be pertinent to the denial of the delegation challenge, yet the breadth of the delegation is to be assessed under different standards than those applicable to an enabling law dealing with purely domestic matters: “Whether, if the Joint Resolution had related solely to internal affairs it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive, we find it unnecessary to determine.” (at 315).
- 107.
Blackstone’s Commentaries 262.
- 108.
Blackstone’s Commentaries 261.
- 109.
As late as 1881, a Senate Report drew the distinction between executive power and the administrative authority of departmental officers in the following terms: “The President, and the President alone, is the Constitutional executive; he and he alone is the co-ordinate executive branch of the government….The departments and their principal officers are in no sense sharers of this power. They are the creatures of the laws of Congress, exercising only such powers and performing only such duties as those laws prescribe.” S. Rept. 837, 46th Cong., 3rd Sess., 1881.
- 110.
The Vesting Clause of Art. II is, like the Vesting Clause of Art. III and unlike their Art. I counterpart, not qualified by the phrase “herein granted.” This difference would occasion a twentieth-century debate on the proper constitutional scope of presidential power between incumbent President Theodore Roosevelt and former President (then Chief Justice) Taft. While the former, unsurprisingly in view of his sanguine and vigorous political career, interpreted the clause (the so-called “stewardship theory”) extensively, as granting a President, as a ‘steward’ of the People, all powers not expressly denied, the latter (“constitutional theory”) read the clause as granting only powers expressly granted (as enumerated in the rest of the article). As a matter of constitutional drafting history, it appears that the “herein granted” qualification was a last minute addition made by the Committee of Style, a committee without authority to make substantive modifications, cf. Charles C. Thatch, Jr., The Creation of the Presidency 1775–1789: A Study on Constitutional History (1922), cited by Lawrence Lessig and Cass R. Sunstein, “The President and the Administration,” 94 Colum. L. Rev. 1 (January, 1994) pp. 48–49, FN 203: “When the report of the committee of style was submitted it was found that the legislative grant now read: ‘All legislative powers herein granted shall be vested in a Congress.’…Whether intentional or not, it admitted an interpretation of executive power which would give the President a field of action much wider than that outlined by the enumerated powers.” Historically, the clause had been consistently interpreted narrowly, as limited to the attributions specifically enumerated in the article. A notable (since disregarded) exception in the Founding Era was made by Alexander Hamilton (“Pacificus,” No. 1, June 29, 1793). Yet it should be emphasized that Hamilton’s more expansive views of administration (see The Federalist No. 72) and strong, energetic executive power (see for instance, The Federalist No. 70, giving the example of Roman dictatorship and speaking about the occasional necessity for republics “to take refuge in the absolute power of a single man, under the formidable title of a dictator”) were largely idiosyncratic in the Founding Era décor. See, more specifically, on these issues, Nathan D. Grundstein, “Presidential Power, Administration, and Administrative Law,” 18 (3) Geo. Wash. L. Rev. 285 (April, 1950). For a modern theoretical defense of a unitary executive grounded in the more open-ended wording of Art. II’s Vesting Clause (like the Vesting Clause of Art. III and as opposed to the Vesting Clause of Art. I), see, for instance Steven G. Calabresi and Saikrishna Prakash, “The President’s Power to Execute the Laws,” 104 Yale L. J. 541 (December, 1994); Steven G. Calabresi and Kevin H. Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary,” 105 Harv. L. Rev. 1153 (1992).
- 111.
Frank Johnson Goodnow, Comparative Administrative Law: An analysis of the Administrative Systems National and Local, of the United States, England, France and Germany (New York, London: Putnam, 1893), at p. 62: “What the meaning of these words was in 1787 has just been shown. It was that the President was to have a military and political power rather than an administrative power.” Also, W. W. Willoughby: “[I]t was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose function should, in the main, consist in the performance of those political duties which are not subject to judicial review.” (as found quoted in Lessig and Sunstein, supra, at p. 44) (emphasis added)
- 112.
Frank Johnson Goodnow, The Principles of the Administrative Law of the United States (New York, London: Putnam, 1905), at p. 75.
- 113.
See Cunningham v. Neagle (In re Neagle) 135 U.S. 1, 10 S. Ct. 658 (1890). U.S. Marshall Neagle had been appointed by the Attorney General to protect U.S. Supreme Court Justice Field while on circuit duty and, fearing for the latter’s life during an altercation, had shot and killed a man. Held that the Take Care Clause was sufficient legal basis and defense to justify issuance of a federal writ of habeas corpus to free Neagle from a California jail where he was held pending trial for murder: “The Constitution, section 3, Article 2, declares that the President ‘shall take care that the laws be faithfully executed’….Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?” (per Miller, J.) These powers would have effect in a court of law if limited to acts of individual application.
- 114.
Grundstein 1950 at p. 304.
- 115.
Confusion between the two issues is common. See Posner and Vermeule 2002 at p. 1741, note 81, citing United States v. Winstar Corporation, 518 US 839, 873 (1996) (“[A statute] is not binding upon any subsequent legislature.”) and concluding that: “Those who disagree with our argument about legislative entrenchment, however, should take into account that the revocability of delegatory legislation leaches out much of the starch from the sort of horrible hypotheticals commonly advanced to support a nondelegation rule.” In fact, it does not; this sort of argument confounds and conflates the categories. What is theoretically possible and what is practically feasible or possible, given the ‘retrieval difficulty’ associated to the veto power, are not one and the same thing. Put otherwise, save from the perspective of the most radical (obtuse?) form of positivism, there is a point at which practical considerations of such magnitude gain dogmatic constitutional value. This is all the more true as the authors defend a pragmatic viewpoint on the matter.
- 116.
Foster v. Neilson 27 U.S. 253 (1829), U.S. v. Blaine 139 U.S. 306 (1891).
- 117.
Other than the political one of having to share foreign affairs attributions with the Senate, which, according to Goodnow, for instance, had been modeled on the colonial precedent of executive councils (in the exercise of these functions, the Senate would be effectively an ‘executive council’ and not a legislative body; Goodnow observed that the House is actually said to be in ‘executive session’), just like the president himself had been granted most of the attributions pertaining to the former colonial governors. See also Gerhard Casper, “The American Tradition of Shared and Separated Powers: An Essay in Separation of Powers: Some Early Versions and Practices,” 30 Wm. and Mary L. Rev. 211 (Winter, 1989), at 261: “Although the special responsibility of the President for the maintenance of foreign relations was understood, neither the President nor Congress assumed that the Executive had what John Locke, in his version of separation of powers, called the ‘federative’ power, which pertained to foreign relations and was, by him, classified as an executive power.” (reviewing separation of powers practices from the Washington Administration).
- 118.
“The Executive…, in addition to ‘tak[ing] Care that the Laws be faithfully executed,’ Art II, § 3, has no power to bind private conduct in areas not specifically committed to his control by Constitution or statute; such a perception of ‘[t]he Executive power’ may be familiar to other legal systems but is alien to our own.” James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), Scalia, J., concurring. See more generally for this distinction discussion and authorities in Henry P. Monaghan, “The Protective Power of the Presidency,” 93 Colum. L. Rev. 1 (January, 1993).
- 119.
See Saikrishna Prakash and Michael D. Ramsey, “The Executive Power over Foreign Affairs,” 111 Yale L. J. 231 (November, 2001).
- 120.
Stat. L. 450 (1796).
- 121.
Stat. L. 577. It could be objected that the constitutionality of the Alien and Sedition Acts was contested at the time, that the opposition stirred by the enactments was believed to have led to the election of Thomas Jefferson, and that the acts would be quickly repealed at the beginning of Jefferson’s Administration (see also The Kentucky Resolution and The Virginia Resolution, passed by the legislatures of the two states, condemning the acts; available for download on the site of the Avalon Project at Yale Law School, http://www.yale.edu/lawweb/avalon/kenres.htm). Nonetheless, for our purposes here, the acts are just an extreme manifestation of a constitutional reality, that of very broad delegations and of a very lenient (patent unreasonableness) standard of review in domains understood as traditionally executive. See, for instance, Mahler v. Eby 264 U.S. 32 (1924) formula to deport aliens based on administrative determination of “undesirability” found constitutional (at p. 40): “Nor is the act invalid as delegating legislative power to the Secretary of Labor. The sovereign power to expel aliens is political, and is vested in the political branches of government. Even if the executive may not exercise it without congressional authority, Congress cannot exercise it effectively save through the executive….With the background of a declared policy of Congress to exclude aliens classified in great detail by their undesirable qualities in the Immigration Act of 1917, and in previous legislation of a similar character, we think the expression ‘undesirable residents of the United States’ is sufficiently definite to make the delegation quite within the powers of Congress.” (opinion of the Court, per Taft, C.J.) Gegiow v. Uhl 239 U.S. 3 (1915), narrow scope of review applied to an immigration officer’s construction of statutory language (“likely to become a public charge”) in a denial of admission (based on the officer’s appreciation of the state of the labor market) (at p. 10): “Detriment to labor conditions is allowed to be considered in § 1, but it is confined to those in the continental territory of the United States, and the matter is to be determined by the President. We cannot suppose that so much greater a power was intrusted by implication in the same act to every commissioner of immigration, even though subject to appeal, or that the result was intended to be effected in the guise of a decision that the aliens were likely to become a public charge.” (per Holmes, J.).
- 122.
The Constitution gives the President a qualified Appointment Power, Art. II, Section 2 (2): “[H]e shall nominate, and by and with the consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” It says nothing about removal.
- 123.
The other side of the token is that in the case of broad delegations, the half-truth of David Currie’s remark becomes apparent: “[J]udicial review is not an end in itself but a means of enforcing (constitutional and statutory) limitations on executive authority; if there are no limitations, there is nothing to review.” The Constitution of the Federal Republic of Germany (Chicago, Chicago University Press, 1994), p. 131.
- 124.
Indeed, Postmaster General Kendall did not even appear in the Circuit Court and his return to the writ (to show cause why a mandamus should not be issued, compelling him to pay the balance owed) made the—retrospectively surprising—argument that “the doctrine laid down by the chief justice in Marbury v. Madison, never was recognized as law by the executive authority.” U.S. ex rel. Stokes v. Kendall, 5 Cranch C.C. 163 (C.C.D.C. 1837). See discussion of the case, infra.
- 125.
Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers (1903), cited by Grundstein 1950 at p. 289. The story can be found in Lessig and Sunstein 1994 at pp. 78–85. In short, much like Nixon was to do later on, in the Watergate affair, Jackson promoted a first Secretary, fired summarily the second (Duane), until a third appointee (the future Supreme Court Justice Roger Taney) finally complied with Jackson’s orders to withdraw government money from the Bank of the United States. The first two refused to comply with an order which they perceived as being in derogation of their constitutional and statutory duties. The larger constitutional question was and is whether and to what extent the President can exercise circuitously, by virtue of his removal power, the discretionary power vested (delegated) by statute in an administrative officer.
- 126.
Kendall v. U. S. ex rel. Stokes, 37 U.S. 524 (1838). Willoughby considered the case had finally clarified the meaning of the Constitution on Congress’s being “the primary source of administrative power.”
- 127.
U.S. 524, 613.
- 128.
The former create rights and duties, regulating the relations of private citizens towards one another and towards the state; the latter, the duties of the administration in relation to the law. See Hart 1925, at p. 19: “In general, our laws have been based upon a conception of the relation between legislation and administration entirely different from that in vogue in Europe. There, general legislation passed with the knowledge that the Executive has the independent power to supplement statutory generalizations, is the normal method. With us it is conceived to be the function of the legislative department to define with completeness and in concrete terms the right and duties which are to be created, and not simply to set forth a general policy to guide the Executive. The enactments of Congress have accordingly been characterized by concreteness, specificness, detail, the limitation of generalities by provisos, and the anticipation (as far as possible, of all future contingencies.” See also id., pp. 53–54, explaining the difference by analogy with the German administrative law distinction between Rechtsverodnungen and Verwaltungsverordnungen.
- 129.
Goodnow 1905, at pp. 84–85: “The ordinances which the President may adopt are of two kinds: First, those which are issued simply as a result of the exercise of his power of direction over the officers of the administration and which are sanctioned merely by his power of removal; and second, those ordinances which are intended to have the force of law, which, therefore, will be enforced by the courts and which may bind not merely an officer of the government, but as well an individual who in the proper case may be punished criminally for refusing to obey them.” Hart’s 1925 study establishes a more comprehensive taxonomy, by analogy with contemporaneous European constitutional-administrative practices, along four criteria: (a) source of authority (constitutional and statutory); (b) scope (autonomous and self-contained, independent of statute, as compared/opposed to sub- or co-legislation); (c) subject-matter (ordinances which constitute material law as opposed to material ordinances); (d) purpose (emergency versus normal situations).
- 130.
Goodnow 1905, at pp. 84–85 gives the example of a civil service rule promulgated 1896, which forbade the removal for political reasons of officers in the classified civil service of the United States. Courts regarded such an ordinance a matter of pure administration and refused to enforce it “and have declared that the only redress open to one who claims that he has been removed contrary to its provisions, is an appeal to the President to remove the offending officer.” White v. Berry 171 U.S. 366 (1898).
- 131.
Caha v. U.S.,152 U.S. 211(1894), 222.
- 132.
Ex parte Reed 100 U.S. 13 (1879); Swaim v. U.S. 165 U.S. 553 (1897). An officer (and even a civilian in the employment of the navy) may be punished by imprisonment by virtue of a court martial constituted under such regulations, whose sentence would be reviewable by Art. III courts only for clear jurisdictional error. Swaim goes as far as recognizing an inherent constitutional authority, resting on the Commander in Chief Clause, to convene general courts-martial “in the absence of legislation expressly prohibitive.” (at 558) Wyman considered that the President would have an original decree-making power to issue general regulations which bind the citizen, not delegated by Congress but deriving directly from the commander-in-chief clause (Administrative Law, p. 287 et sequitur).
- 133.
See United States v. Eaton, 144 U.S. 677 (1892). Defendant, a wholesaler, had been prosecuted for failure to keep a book and make a return respecting sales of oleomargarine, to the commissioner of internal revenue, as prescribed by a regulation (under the authority of congressional statutory authorization to make “needful regulations” for carrying the act into effect, the failure to do anything “required by law” made by the act a criminal offense; the statute expressly imposed duties only on manufacturers), in addition to the statutory requirements. The regulation was voided by the Supreme Court as unsupported by the statute: “Regulations prescribed by the president and by the heads of departments, under authority granted by congress, may be regulations prescribed by law, so as lawfully to support acts done under them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing required by law as to make the neglect to do the thing a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal offense.”
- 134.
See, in this vein, Carl Schmitt, La Dictature, especially the chapter 1 discussion on the relevance of the distinction between an officer and a commissioner in Bodin’s Six livres de la République.
- 135.
Making the orders of the President or his immediate subordinates “a defense in all courts,” for instance the Acts of March 3, 1863, May 11, 1866, and March 2, 1867, ratifying the unilateral presidential suspensions of Habeas Corpus and (the latter) protecting officers against suits based on Ex parte Milligan. According to the Supreme Court, Congress could validly ratify whatever action it could have approved in the first place: “…it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congressm that on the well known principle of law, ‘omnis ratihabitio retrotrahitur et mandato equiparantur,’ this ratification has operated to perfectly cure the defect.” The Amy Warwick (The Prize Cases), 67 U.S. 635, 671 (1862).
- 136.
Public Acts of the XXXVII. Congress, 1st sess., ch. Lx. More generally, see William A. Dunning’s brief but excellent study on the impact of the Civil War on the Constitution, “The Constitution of the United States in Civil War,” 1 (2) Political Science Quarterly 163 (Jun., 1886).
- 137.
The South was governed after 1865 much like a conquered colony, by large numbers of federal civilian bureaucracy employed in the Freedman’s Bureaus. The Civil Service (Pendleton) Act inaugurated, in 1883, the partial demise of the spoils system administration and the beginnings of professionalized (merit-based) federal civil service; it was passed partly as a result of the Progressive efforts at reforming the aministration and partly in direct response to the public outcry stirred by the 1881 assassination of President Garfield by a disappointed office-seeker. Jerry L. Mashaw, “Reform” and the Public Service in the United States (New Haven: Yale University Press, 2001), unpublished draft on file with the author.
- 138.
Herbert Tingstén, Les pleins pouvoirs-L’Expansion des pouvoirs gouvernamentaux pendant et après la grande guerre, traduit du Suédois par E. Söderlindh (Paris: Librairie Stock, Delamain et Boutelleau, Publications du Fonds Descartes, 1934), p. 153. Also see, Clinton Rossiter, Constitutional Dictatorship-Crisis Government in the Modern Democracies (Princeton: Princeton University Press, 1948) and James Hart’s study, “The Emergency Ordinance: A Note on Executive Power,” 23 Colum. L. Rev. 528 (1923).
- 139.
See detailed description in Tingstén 1934, pp. 151–174. A taxonomy and analysis of war cases is provided by Clinton Rossiter, The Supreme Court and the Commander in Chief (Ithaca, N.Y.: Cornell University Press, c1951).
- 140.
However, in spite of sunset clauses and a general understanding that official ending of the war would terminate these authorizations, emergency powers were exercised after the cessation of hostilities, for instance, during the 1919 mining strike.
- 141.
Political Theology-Four Chapters on the Concept of Sovereignty (Politische Theologie: Vier Kapitel zur Lehre der Souveränität), George Schwab transl. (Cambridge, Mass. and London, England: The MIT Press, c1985), p. 5.
- 142.
Grundstein 1950, at pp. 307–308.
- 143.
U.S. 137, 170 (1803)
- 144.
Richard B. Stewart and Cass Sunstein, “Public Programs and Private Rights” 95 Harv. L. Rev. 1193 (April, 1982), at 1232–1233: “The reservation of a major share of economic life to a system structured through private litigation was a key element in the separation of powers scheme….The grant of extensive lawmaking authority to administrative bodies deprived the courts of much of their established dominion, granted vast responsibilities to bureaucratic entities not anticipated in the Constitution, and undermined the separation of powers.” [emphasis supplied]
- 145.
The theoretical father of modern constitutionalism, Locke, provides us here with another interesting insight into the matter. The rule of law distinction explored in this section parallels the difference between legislative (stated, antecedent, promulgated rules of liberty and property) and prerogative (§ 160 “[a] power to act according to discretion for the public good, without the prescription of the law and sometimes even against it”) powers, just as the separation of powers problems analyzed in the preceding section mirror Locke’s disjunction between legislative, executive, and federative powers. Even though it has a political dimension as well, derived from English historical contingencies (the convening and dissolution of parliament was historically an important part of royal prerogative) Locke’s prerogative encompasses a larger sphere than that of Aristotelean equity, with which it is sometimes analogized (justice considerations which justify departures from rules according to the needs of individual situations) and is essentially very close to the modern equivalent of “policy-making discretion.”
- 146.
U.S. 497 (1840).
- 147.
Id., at p. 515.
- 148.
Id., at p. 521.
- 149.
Which does not mean that sources of discretion as such cannot be identified and tabulated taxonomically, see, for instance Stewart 1974-1975, at p. 1676, note 25, identifying three sources of discretion:
-
i.
“the legislature may endow an agency with plenary responsibilities in a given area and plainly indicate that within that area its range of choices is entirely free”;
-
ii.
“the legislature may issue directives that are intended to control the agency’s choice among alternatives but that, because of their generality, ambiguity, or vagueness, do not clearly determine choices in particular cases”; and
-
iii.
clauses precluding judicial review.
-
i.
- 150.
The classic debate on the issue of whether the Constitution reposes on natural law or is just positive legislation is the dispute between Justices Chase and Iredell in Calder v. Bull 3 U.S. (3 Dall.) 386 (1798), with Justice Chase’s seriatim opinion expounding the natural rights/natural law version. See comments in Tribe, supra, at 561: “Chase’s natural rights were defined in large part reflexively: they were the residue marked out by the limits on government implied by its very reasons for being.” Perhaps, to a certain extent, adherence to a final assumption of natural rights or—in Tribe’s words—a “residue marked out by the limits on government implied by its very reasons for being” is inescapable for a public lawyer adhering to the idea of limited government, constitutionalism. As a theoretical matter (yet with quite a few practical implications) the question is only what that implied limitation should be at any given time and whether the rule of law wedge one seeks to draw between the state and the individual would be a more concrete normative one, such as the generality-life-liberty-property criterion of old constitutionalism or whether one should seek its replacement by an abstract normative position of sorts.
- 151.
Monaghan 1983.
- 152.
Ibid., at p. 6.
- 153.
The Court has a monopoly of interpretation of questions of constitutionality, see, for instance City of Boerne v. Flores 521 U.S. 507 (1997).
- 154.
Monaghan is only interested in the narrower question of the extent to which the Constitution, i.e., Marbury’s definition of judicial review, controls in turn judicial review of administrative legal interpretation of federal statutes and in the resulting allocation of interpretive authority between the federal judiciary and the administration. See also, related, Robert Rabin’s more expansive history of judicial control of federal regulatory action, “Federal Regulation in Historical Perspective,” 38 Stan. L. Rev. 1189 (May, 1986). Judicial review of administrative action can also be imagined as defined by a continuum whose poles are de novo consideration of law, facts, policy (which was the position of the Court, for instance, in some post-Civil War reviews of rate reasonableness) and—at the other extreme—a highly deferential model of review, in matters of both interpretation of law and factual predicates for administrative action (NLRB v. Hearst). According to Rabin, most frequently, the Court oscillated between two intermediate positions within this range, which he defines as “Right Answer” (the so-called “hard look” review, best exemplified by Citizens to Preserve Overton Park v. Volpe) and “Best Efforts”, respectively (for instance Chevron, U.S.A. v. Natural Resources Defense Council).
- 155.
A brief historical note may help clarify the matter. Since the central government as such has sovereign immunity against direct suits, unless it chooses to waive it expressly, the initial way of proceeding was for an individual having a claim on the government to petition the legislature for a special appropriation bill, which the Kendall case held, as we have noted above, to be mandatory upon the administration (the disbursing officer). In 1855, the Court of Claims was created (now, recreated in 1982, as the U.S. Court of Federal Claims) under Art. I, as a “legislative court.” At the beginning, its ‘judgments’ had no legal effect whatsoever and were drawn up in the form of a bill to be laid before Congress, then it became a real legislative court, its judgments binding on the Secretary of the Treasury, with a possibility of appeal to the Supreme Court. Initially it was given no equity jurisdiction. It still has no jurisdiction over torts committed by the government.
- 156.
U.S. 272 (1855), 280. See also Ex parte Bakelite Corporation 279 U.S. 438 (1929), for an extensive review of developments and enumeration of Art. I courts.
- 157.
Rabin 1986, at p. 1196.
- 158.
Willard Hurst 1967, passim.
- 159.
Allgeyer v. Louisiana 165 U.S. 578 (1897), constitutional definition of liberty extends to freedom of contract.
- 160.
Cass Sunstein labels this interpretation of the constitution and judicial review of administrative action, i.e., from the premise or standpoint of property and liberty rights, and the many property-related constitutional provisions, “Lochner-like premises” (probably because of the pejorative overtones which the label has acquired) and assimilates them to a reactionary-conservative, misplaced or at least obsolete (and now debunked) common law baseline of natural rights and proposes departure from this baseline and its replacement with a new theory of interpretation. In passing, it is unclear in what if any legal sense a constitutional provision is “Lochner-like.” See for instance his Reconceiving the Regulatory State: After the Rights Revolution (Cambridge, Mass.: Harvard University Press, 1990).
- 161.
Sic utere tuo ut alienum non laedas (use your property so as not to harm another’s).
- 162.
Story, Commentaries (Rotunda and Nowak edition, 1987), pp. 510–511.
- 163.
Lochner v. New York, 198 U.S. 45 (1905) A law restricting to sixty the number of hours bakers could work during a week (a maximum of ten during a day) was declared unconstitutional, since rationally unsupported by any classical police justification (health or safety). Compare with Muller v. Oregon, 208 U.S. 412 (1908) where a similar law, limiting the number of hours women could work in laundries and factories was upheld, largely as a result of the Court’s being persuaded by the social data in the famous “Brandeis Brief” that physical and social differences between men and women established a public health (police) justification for the law.
- 164.
Or, in a more modern analogy, because they provided “prime necessities” from the economic vantage point of actual monopoly (public utilities). See discussion in Michael Taggart, “The Province of Administrative law Determined?,” in The Province of Administrative Law, Michael Taggart (ed.) (Oxford, England: Hart Publishing, 1997), pp. 1-20. The common callings still recognized today are the innkeeper, the ferryman, and the common carrier.
- 165.
The classic English decision is Alnutt v. Inglis 12 East, 527, 104 Eng. Rep. 206 (K.B.1810), in which Lord Ellenborough held that the London Dock Company, a licensed customs house for goods bound for export, being the beneficiary of a legal monopoly, was under a duty to the public of imposing only such charges as were reasonable (at pp. 210–211): “There is no doubt that the general principle is favored both in law and justice, that every man may fix what price he pleases upon his property or the use of it: but if, for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms.”
- 166.
Hovenkamp 1991, at p. 114.
- 167.
U.S. 113.
- 168.
Hovenkamp 1991, at p. 126.
- 169.
Id., “Modern regulation by statute applies more or less equally to all similar firms in a sovereign jurisdiction –for example to all common carriers within the state. But regulation by charter was specific to the firm….This approach was generally consistent with classical theory, which regarded regulation as rare and not to be presumed. As late as the 1860’s and 1870’s railroads were chartered with no price regulation whatsoever….As late as 1877, when Munn v. Illinois affirmed the constitutionality of rate regulation of an unincorporated enterprise, many believed price regulation was beyond state power unless the firm operated under a charter authorizing the regulation.”
- 170.
Id., at p. 134.
- 171.
U.S. 393, at 415 (1922).
- 172.
Rabin 1986, at p. 1210.
- 173.
In Willard Hurst 1967, at p. 84.
- 174.
Tribe 1988, Chapter 8, Model II-The Model of Implied Limitations on Government: The Rise and Fall of Contractual Liberty. For an exploration of the correlation between classical economics and classical legal thought, Herbert Hovenkamp, Enterprise and American Law 1836–1937 (Cambridge, Mass.: Harvard University Press, 1991). The study seeks to demonstrate that Adam Smith-like economic classicism and legal classical thought were interrelated and marginally overlapping, not in some simplistic deterministic way but rather because: “American political economists and American judges operated in the same uniquely American ‘market’ for ideas.” (at p. 96) Of more direct interest to us here is the observation, at p. 296, that: “[t]he great values of nineteenth-century American lawyers-individualism, liberty of contract, abhorrence of forced wealth transfers- were also the values of classical political economy.” More generally on the history and evolution of regulation, Thomas K. McCraw’s monograph, Prophets of Regulation (Cambridge, Mass, and London, England: Belknap-Harvard University Press, c1984).
- 175.
Hovenkamp 1991, at p. 148: “If the railroads were permitted to have unregulated monopolies, rate gouging and large monopoly profits at the expense of the shippers were sure to result. If the railroads were forced to compete with each other and pooling or other forms of cartelization were strictly forbidden, railroad rates would almost certainly be driven to a level too low to cover fixed costs, forcing the railroads into bankruptcy.”
- 176.
An economic and legislative history of the problems leading to the creating of the state and federal railroad commissions can be found in the first chapter of McCraw’s monograph. See also, Rabin 1986, at pp. 1206–1207: “[W]hat seems most apparent is that virtually no one was happy with the discriminatory practices engaged in by the railroads to secure additional business. Merchants, farmers, regional loyalists, and railroad entrepreneurs all shared the view that federal regulation was essential. Where they disagreed was on the crucial particulars.”
- 177.
U.S. 557 (1886).
- 178.
E.g., ICC v Cincinnati, New Orleans & Texas Pacific Railway, 168 U.S. 11 (1897) In the face of ten years of different ICC practice (and Congressional acquiescence), power expressly conferred in the act to declare rates unreasonable was declared by the Court not to imply a power to establish reasonable rates; if Congress had wished to confer ratemaking power, it should have done so in express terms. See also Chicago, Milwaukee, St. Paul Railway v. Minnesota, 134 U.S. 418 (1889) state legislation giving an agency “final and conclusive” authority over the reasonableness of rates would not control the courts, since rate reasonableness is “eminently a judicial question.” In the 1910 case of Interstate Commerce Commission v. Illinois Central Railroad, 215 U.S. 452 (1910) the Court would present a different, much more restrained view of the scope of review: “Beyond controversy, in determining whether an order of the Commission shall be suspended or set aside, we must consider: (a) all relevant questions of constitutional power or right; (b) all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to have been made; and (c) a proposition which we state independently, although in its essence it may be contained in the previous one, viz., whether, even although the order be in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power.” (at 470). According to Rabin, the history of federal regulation explains this change from correctness to a relaxed reasonableness review as a period of acclimatization and accommodation of the Court with administrative innovations.
- 179.
Rabin 1986, at p. 1215, note 65.
- 180.
Besides, aside from the fact that the judiciary effectively rendered the Commission’s powers almost nugatory through de novo review, even as Congress gave the ICC positive power to set maximum rates upon a shipper’s complaint that a rate was unreasonable, through the Hepburn Act, in 1906, there was yet not that much administrative discretion granted, within the logic of the classical legal paradigm. The Commission was also given a locomotive inspection function. According to Martin Shapiro, both locomotive inspection and rate setting were perceived as one and the same issue essentially, i.e., “objective, scientific assessements based on exact, nondiscretionary standards.” As the locomotive safety standards were set scientifically (since the cost-risk trade-offs incorporated in the standard and based on professional conventions were then unapparent), so too was maximum rate-setting an objective application of science (economics and accounting) to facts (market value): “Economics would determine what a fair rate of return was on investment. That rate was a phenomenon as ‘natural’, that is, beyond human manipulation, as the transit of Venus. The economist would observe the free market as the astronomer did the heavens, and measure fair rate of return, that is the return that any investment in the market would yield, as the astronomer charted Venus’s sidereal movement. The accountant would then determine the amount of the railroad’s costs to be properly attributed to the hauling of a particular commodity over a particular track, add the appropriate fair return figure provided him by the economist and arrive at the correct rate. In this realm of accounting, all was quantified and accurately measurable. Nothing was uncertain. Rate regulation was a matter of science rather than discretion.” The Frontiers of Science Doctrine: American Experiences with the Judicial Control of Science-Based Decision-Making, EUI Working Papers, European University Institute RSC No. 96/11 (1996). According to Theodore Lowi as well, the nature of ICC became truly discretionary only with the 1920 Transportation Act’s granting it power to set “just and reasonable” “minimum rates.” This is a very interesting observation in light of the distinct nature of an affirmative power granted in vague terms and exercised in a judicial manner, in an essentially “polycentric” domain: “In effect this meant case-by-case bargaining (called ‘on the merits’), the results putting the commission on every side of every issue….this totally altered the meaning of the ICC.” (supra at 102).
- 181.
The constitutional question was whether within the regulatory limits of police powers legislation, the Constitution either implied or forbade (as a Contract Clause impairment and, respectively as a Fourteenth Amendment due process limitation) the conferral of monopoly privileges in public contracts (i.e., corporate charters). The Supreme Court would answer both questions in the negative, Charles River Bridge Case, Charles River Bridge v. Warren Bridge 13 U.S. 420 (1837) and The Slaughter House Cases 83 U.S. 36 (1872).
- 182.
th and 6th Edw. VI, Ch. 14.
- 183.
Interpreting the Sherman Act in light of these common law assumptions was the reason for Holmes’s argument in his famous Northern Securities dissent, where, to the dismay of Theodore Roosevelt, he made the apparently surprising statement that: “[t]he court below argued as if maintaining competition were the expressed object of the act. The act says nothing about competition.” At 403 (emphasis supplied)
- 184.
Brandeis, one of the most vociferous critics of the ‘trusts,’ personally instrumental in the creation of the Federal Trade Commission, because of his visceral antipathy to ‘big business’ as such, seems to have been curiously unable to grasp the economic differences in kind between business fields where, because of economies of scale, cartel arrangements would tend towards tight central vertical integration (the ‘trusts’), and business fields where, due to easy entry, cartel arrangements would never amount to more than loose peripheral horizontal associations, easy to default on and prone to early demise. He disliked first and foremost the Moloch, big business as such, irrespective of economic benefits derived from operational size, and concentrated his energies on the elimination of unfair trade practices since he correlated ‘bigness’ (the ‘trusts’) with unfairness and deceit. Considerations of efficiency and thus consumer welfare came a distant second for Brandeis. During 1911 Congressional hearings, Brandeis states his position bluntly: an efficient firm might nonetheless become “too large to be tolerated among people who desire to be free.” Cited by Mark Winerman, “The Origins of the FTC: Concentration, Cooperation, Control, and Competition,” 71 Antitrust L. J. 1 (2003), at 35. See McCraw 1984, “Brandeis and the Origins of the FTC,” pp. 80–142. See also Ellis Hawley, The New Deal and the Problem of Monopoly-A Study in Economic Ambivalence (Princeton, N.J., Princeton University Press, c1966).
- 185.
Mark DeWolfe Howe, ed., Holmes-Pollock Letters, vol. I (Cambridge: Harvard University Press, 1941), at p. 163.
- 186.
Standard Oil Co. of New Jersey v. U.S. 221 U.S. 1 (1911), see at 60, for instance, the judicial statement of the problem: “[A]s the contracts or acts embraced in the provision were not expressly defined, since the enumeration addressed itself simply to classes of acts, those classes being broad enough to embrace every conceivable contract or combination which could be made concerning trade or commerce or the subjects of such commerce, and thus caused any act done by any of the enumerated methods anywhere in the whole field of human activity to be illegal if in restraint of trade, it inevitably follows that the provision necessarily called for the exercise of judgment which required that some standard should be resorted to for the purpose of determining whether the prohibition had or had not in any case been violated.”
- 187.
The issue was described quite clearly and at an early stage by Gerald Henderson: “It may be conceded that the test is not of itself susceptible of precise and definite application. A court may have good reasons for concluding that it is not proper for a physician to covenant not to practice his profession within 100 miles of the city of York, but they are not very helpful in determining whether or not a consolidation of 40 per cent of the steel industry in the United States is reasonable. At most they suggest the frame of mind into which the judges should put themselves.” Gerald Henderson, The History of the Federal Trade Commission-A Study in Administrative Law and Procedure (New York: Agathon Press, 1968 (c1924)), at p. 6.
- 188.
But cf. Lowi 1979, at p. 99, the act not a delegation since the object of control was a “numerous but namable collection of companies and identifiable conducts (Therefore, The Trusts.)” That may be true in an instrumental, more result-oriented political science sense. From a legal perspective, what is important from a delegation-related perspective is whether or not the new legislation could be narrowed down and interpreted in a consistent manner, through a judicial test which would render the legislative command predictable. Here, Holmes’s dissent in Northern Securities Co. v. U.S. 193 U.S. 197 (1904), at 402, is pertinent: “[T]he statute is of a very sweeping and general character. It hits ‘every’ contract or combination of the prohibited sort, great or small, and ‘every’ person who shall attempt to monopolize, in the sense of the act, ‘any part’ of the trade or commerce against the several states. There is a natural inclination to assume it was directed against certain great combinations, and to read it in that light. It does not say so. On the contrary it says ‘every,’ and ‘any part.’”
- 189.
See, Giandomenico Majone, Regulating Europe (New York and London: Routledge, c1996), for an elaboration on the remark that, categorized with respect to the way in which the proper role of the state and the corresponding place of the market is primarily approached, America is an ideal-typical “regulatory state,” since its regulatory function predominates, and to this extent it differs from the welfare state (redistribution function), Keynesian state (stabilization function) or a combination of the latter two, the Keynesian welfare state: “[T]he regulatory function…attempts to increase the allocative efficiency of the market by correcting the various types of market failure: monopoly power, negative externalities, failures of information or an insufficient provision of public goods.” That is to say, the state regulates the market policing or substituting for the real life departures from an economic model that supposes a perfect competition, with a perfectly well informed customer and internalization of all the costs.
- 190.
Usually decisions on appeal from the circuit court of appeals decisions on applications for enforcement or petitions for review of FTC cease-and-desist orders. In a long line of cases, the most representative are Federal Trade Commission v. American Tobacco Co. 264 U.S. 298 (1924), rendering nugatory the investigative powers of the FTC; the agency had sought in District Court a writ of mandamus directing the tobacco companies to produce records, contracts, memoranda, correspondence, for making copies and inspection: “Anyone who respects the spirit as well as the letter of the Fourth Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire and to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime….The right to access given by the statute is to documentary evidence-not to all documents, but to such documents as are evidence. The analogies of the law do not allow the party wanting evidence to call for documents in order to see if they do not contain it.” Opinion of the Court, per Holmes, J.
- 191.
Federal Trade Commission v. Gratz, 253 U.S. 421 (1920), at 427: “The words ‘unfair method of competition’ are not defined by the statute and their exact meaning is in dispute. It is for the courts, not the commission, ultimately to determine as matter of law what they include. They are clearly inapplicable to practices never heretofore regarded as opposed to good morals because characterized by deception, bad faith, fraud, or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.” Opinion of the Court, per McReynolds, J. The contrast with Brandeis, J.’s dissent is revealing of the clash of paradigms and the issue of delegation as standard of review in statutory interpretation: “Instead of undertaking to define what practices should be deemed unfair, as had been done in earlier legislation, the act left the determination to the commission.” (at 436)
- 192.
In the Clayton Act, which would also be enforced by the Commission, Congress made an attempt to specify three categories of conduct expressly prohibited: price discrimination, interlocking directorates, exclusionary agreements.
- 193.
Davis 1969, at p. 20.
- 194.
Jerry L. Mashaw observed that modern American statutes, even though otherwise replete with technical detail, “often exhibit surprising vagueness precisely at the point of critical policy choice,” since “adverbial equivocations” (“feasible,” “practicable,” “reasonable”) render the legislative direction essentially and irresolutely vague, precisely at the point of critical policy choice and this in spite of technical or procedural detail. Mashaw 1997 at p. 135.
- 195.
Louis Jaffe, “The Illusion of Ideal Administration,” 86 Harv. L. Rev. 1183 (May, 1973). The main thesis is revealed by the following passage: “The broader the power defined as appropriate for exercise by an administrator, the greater the frustration of the critic who finds that the state of the regulated world is not to his tastes. The assumption that a vague delegation to regulate in the public interest yields a standard which is readily discoverable by an administrator provokes objection when results do not comport with one or another individual’s concept of what the ‘public interest’ requires.”
- 196.
A number of related social-intellectual ideas concerned with social, legal, and institutional reform are brought together under the umbrella of ‘progressivism,’ a political and intellectual movement influential from the late nineteenth until the first decade of the twentieth century. Daniel T. Rodgers analytically broke the general label of ‘progressivism’ (and the ‘ideology of discontent’ characterizing the different positions characterized loosely as progressivism) into three “languages of discontent,” epitomizing “three distinct clusters of ideas…the first was the rhetoric of antimonopolism, the second was an emphasis on social bonds and the social nature of human beings, and the third was the language of social efficiency.” “In Search of Progressivism,” 10 (4) Reviews in American History 113 (Dec., 1982), at p. 123.
- 197.
“[T]he control of business remains too controversial and too vital a political issue to be entirely relegated to any commission independent of close control by the policy-formulating agencies of the government.” E. Pendleton Herring, Public Administration and the Public Interest (New York: McGraw Hill, 1936), at p. 138. See, by the same author, a review and analysis of the early political and legal imbroglios of the Federal Trade Commission, “Politics, Personalities, and the Federal Trade Commission,” I and II, 28 (6) and 29 (1) American Political Science Review 1016 (Dec., 1934) and 21 (Feb., 1935).
- 198.
Marver H. Bernstein, Regulating Business by Independent Commission (Princeton, N.J.: Princeton University Press, 1955), at p. 37: “The Progressives had an abiding faith in regulation, expertness, and the capacity of American government to make rational decisions provided experts in the administrative agencies could remain free from partisan political considerations.”
- 199.
See Herbert Hovenkamp, “Evolutionary Models in Jurisprudence,” 64 Tex. L. Rev. 645 (December, 1985). Also see by the same author “The Mind and Heart of Progressive Legal Thought” (Presidential Lecture given at the University of Iowa), available for download at http://sdrc.lib.uiowa.edu/preslectures/hovenkamp95/, last visited October 31, 2010). Hovenkamp relates legal Progressivism to the transposition of Darwin’s evolutionary theories to social sciences. According to him, The Descent of Man, published in 1871, which linked humans to Darwin’s general theory of evolution, produced both a right- (Herbert Spencer is here the epitomic example) and a left-wing or Reform Social Darwinism. The Progressives, as Reform Darwinists, believed that the specific difference of the human species is that it can understand and thus control or ‘manage’ scientifically its evolutionary process.
- 200.
See a review in Vile 1967, X-“Progressivism and Political Science in America,” pp. 263–293. Thus the interest and fascination with “efficiency, rationalization, and social engineering” (Rodgers at p. 126)
- 201.
Roscoe Pound, “Spurious Interpretation,” 7 Colum. L. Rev. 379 (1907), at p. 384. In short time Pound will experience a spectacular about face, complaining of New Deal “administrative absolutism,” just as Landis would later experience his own disillusionment, with the ideas of administrative expertise and objectively attainable public interest. See, on these issues, Horwitz, op. cit. Chapter Eight, “Legal Realism, the Bureaucratic State, and The Rule of Law,” pp. 213–246.
- 202.
Even though the initial commissions were not given rulemaking functions, the Federal Trade Commission issued a complaint, enforcing the law (‘like’ the executive), decided on the merits of the complaint and issued a cease and desist order (‘like’ a court). Being the institutional heir of the 1903 Bureau of Corporations within the Department of Commerce and of the state ‘sunshine’ (investigatory) commissions, it also investigated trade practices and compiled data, held trade practice conferences, and made proposals de lege ferenda to Congress, functions that resembled (were ‘like’) those of a legislature.
- 203.
James M. Landis, The Administrative Process (New Haven and London: Yale University Press, 1966 edition with a Foreword by Louis L. Jaffe (c1938)), at p. 15: the administrative process “presents an assemblage of rights exercisable by government as a whole.” Yet, the innovation is unproblematic, since (at p. 47): “The desirability of four, five, or six “branches” of government would seem to be a problem determinable not in light of numerology but rather against a background of what we now expect government to do.”
- 204.
Quoted by Michael Taggart in “The Tub of Public Law,” in David Dyzenhaus, ed. The Unity of Public Law (Oxford & Portland, Oregon: Hart Publishing, 2004), at p. 474.
- 205.
See Stewart 1974-1975, at p. 1678 (commenting on the judicial review consequences of the ‘expertise’ model of administrative law): “For in that case the discretion that the administrator enjoys is more apparent than real. The policy to be set is simply a function of the goal to be achieved and the state of the world. There may be a trial and error process in finding the best means of achieving the posited goal, but persons subject to the administrators control are no more liable to his arbitrary will than are patients remitted to the care of a skilled physician.” In a brief interdisciplinary interlude, consider the ‘expertise’ model as expounded, in a more chilling formulation, by one of the fathers of modern architecture, Le Corbusier: “The despot is not a man. It is the … correct, realistic, exact plan… that will provide your solution once the problem has been posed clearly…It is the Plan…drawn up well away from the frenzy in the mayor’s office or the town hall, from the cries of the electorate or the laments of society’s victims. It has been drawn up by serene and lucid minds. It has taken account of nothing but human truths.” (The Radiant City)
- 206.
Ernst Freund, Administrative Powers over Persons and Property (Chicago: Chicago University Press, 1928), at p. 218. The Progressives had borrowed their view of administration as distinct from politics—at least in part—emulating the work of administrative scholars like Freund and Goodnow. The latter had famously drawn a distinction between politics and administration, depicted as a distinction between an expression and the execution of state will. But the difference between these early writers and the ‘expertise’ model of administrative law is one of kind. What Goodnow and Freund were advocating was not the idea that administration as such could be set apart from politics. Rather, emulating in turn European models of administration, they predicated the instrumental value of professionalized bureaucracy of the ‘Weberian’ strand, sine ira ac studio—in Weber’s words—“discharge of business according to calculable rules.” In this paradigm, the ideal of bureaucracy is a machine, not an expert: “The progress toward the bureaucratic state, adjudicating and administering according to rationally established law and regulation, is nowadays very closely related to the modern capitalist development. The modern capitalist enterprise rests primarily on calculation and presupposes a legal and administrative system, whose functioning can be rationally predicted, at least in principle, by virtue of its fixed general norms, just like the expected performance of a machine.” [emphasis in original] Max Weber, Economy and Society: An Outline of Interpretive Sociology (Berkeley and Los Angeles: University of California Press, 1978), Guenther Roth and Claus Wittich, Eds., at p. 1394. The shift or rather leap of paradigm to the Progressive version of administration is epitomized by Woodrow Wilson’s take on the matter, as perhaps best exemplified by his short article on “The Study of Administration,” (Vol. II (2) Pol. Sci. Q. 197 (June, 1887)) which, not coincidentally, was published in 1887. This is the year that marked the beginning of the modern administrative state, with the establishment of the Interstate Commerce Commission.
- 207.
Hovenkamp 1995.
- 208.
Anatole France, Le lys rouge (1894).
- 209.
A very good example in this vein is Robert L. Hale’s “Coercion and Distribution in a Supposedly Non-Coercive State,” 38 (3) Political Science Quarterly 470 (September, 1923). Also see, for a summation and commentary of relevant debates, Morton J. Horwitz, The Transformation of American Law 1870–1960 -The Crisis of Legal Orthodoxy (New York, London: Oxford University Press, c1992), esp. Ch. Five-The Progressive Transformation in the Conception of Property, pp. 145–167.
- 210.
Cornell L. Q. 8 (1927).
- 211.
Blackstone’s Commentaries, supra 2 (Ch. 1-Of Property, in General). Of course, in both Locke and Blackstone, the final assumption is natural law, i.e., Divine ordinance. In Blackstone the relation between actual practices (positive law) and their foundation in natural law is made very explicit. While “[i]t is well if the mass of mankind will obey the laws when made, without scrutinizing the reasons of making them,” if we go to the roots of things, we see that the final authority is Divine command, so that the foundation of property is, positively speaking, Genesis 1:28: “In the beginning of he world, we are informed by holy writ, the all-bountiful creator gave to man ‘dominion over all the earth.’ This is the only true and solid foundation of man’s dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject.”
- 212.
“If we reduce your rates, your value goes down. If we increase them, it goes up. Obviously, we cannot measure rates by value if value is itself a function of rates.” Cited by Horwitz 1992, at p. 163.
- 213.
Cf. Hovenkamp at p. 360. See, relevant for the discussions here, “The Business Corporation in the Post-Classical Era,” pp. 357-362.
- 214.
Adolf A. Berle and Gardiner Means, The Modern Corporation and Private Property (New York: Macmillan, 1933).
- 215.
Charles A. Beard, The Economic Interpretation of the Constitution of the United States (New York: Free Press, c1935 (first published 1913)).
- 216.
Cf. Arthur M. Schlesinger, Jr., The Coming of the New Deal (Boston: Houghton Mifflin, 1959), at p. 66.
- 217.
Who believed an enforceable nondelegation doctrine to be a corollary of his procedural theory of constitutional interpretation, perhaps as an interesting gloss on the inevitable interaction between process and substance-based constitutional theories.
- 218.
Edward L. Rubin, “Law and Legislation in the Administrative State,” 89 Columbia Law Review 369 (April, 1989), 379–380.
- 219.
Id., at 426.
- 220.
Ibid., at 383: “From the perspective of the implementation mechanism, the statute’s degree of transitivity is the mechanism’s degree of discretion.” Through this pseudo-technical jargon, Rubin means to make the rather simple and apparent observation that modern statutes do not address the individual directly, stating rules for action, they are not normative. Modern statues are constitutive of administrative discretion. In a condescending comment on and paraphrase of Lon Fuller, Rubin concludes that the ‘morality of law’ should be properly called, modern legislation-wise, “the morality of transitive external statutes.”
- 221.
“Interring the Nondelegation Doctrine,” 69 University of Chicago Law Review 1721 (2002).
- 222.
In this vein, see, for a very balanced and thoughtful critique, Peter L. Strauss, “Legislative Theory and the Rule of Law: Some Comments on Rubin,” 89 Colum. L. Rev. 427 (April, 1989), esp. the comment at 427–428, which is worth reproducing at length: “[I]t is in part perhaps because of a failure to see that once the conversion has been made from ‘transitive’ to ‘intransitive’ statute-making, the question about control-and that question is not only one about Congress’s relation to the agencies (the question on which he would have us focus), but also about the people’s relationship to both Congress and the agencies; and also about our relationship to the President, and the President’s relationship to the agencies. This is, if you like, the separation-of-powers question; one needs to account for the President and the courts as well as for Congress, and for the impact of change in Congress on how we would wish Congress (and our government generally) to be.”
- 223.
Other than the unorthodox argument of authority: too many authors of notice have written too much about it, for the topic to be so easily and cavalierly discarded.
- 224.
[1964] A.C. 40, at 66, per Lord Reid. Likewise, it would be said in Maxwell v. Dept. of Trade, [1974] 2 W. L. R. 338, 349, regarding fairness, that “From time to time, during that period lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognize.”
- 225.
Field v. Clark, 143 U.S. 649 (1892), 692: “That Congress cannot delegate legislative power…is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”
- 226.
Jaffe 1965, at p. 320.
- 227.
See for instance Cynthia Farina, “Statutory Interpretation and the Balance of Power in the Administrative State” 89 Colum. L. Rev. 452, at 479 (April, 1989): “Nondelegation doctrine served as on the principal battlegrounds upon which the constitutionality of the growth of the federal regulatory authority was tested.” Meaning, as I understand her argument, that is served as a battleground since and in the way it structured the major debates on administrative discretion, the proper scope of government, separation of powers, and accountability.
- 228.
Sunstein 2001, supra note at p. 143. His observation was made in 2001 but the events intervening in the meanwhile, most notably the Supreme Court decision in Whitman v. American Trucking Assn., confirm it.
- 229.
Cf. also Theodore W. Cousens, “The Delegation of Federal Legislative Power to Executive Officials,” 33 Michigan Law Review 512 (1935), at p. 538: “Summing up the previous cases, without any undue attempt at clarifying that which the Supreme Court itself has left more or less nebulous, two general conclusions may fairly be arrived at:
-
(1)
Wherever a question has arisen as to the validity of the delegation of alleged legislative power it has been uniformly upheld, and
-
(2)
Powers which have been held non-legislative for the purpose of upholding their delegation have for other purposes in other cases (and sometimes in the same case) been held to be legislative or quasi-legislative.”
-
(1)
- 230.
U.S. 649 (1892). Delegation by a state statute had already been attacked in the Railroad Commission Cases, 116 U.S. 307 (1886). The Supreme Court affirmed the decision of the highest court of Mississippi and maintained that establishing a regulatory commission with supervisory role over the railroads was not contrary to the Mississippi Constitution.
- 231.
C. 1244, sec. 3, 26 Stat. 567.
- 232.
“To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.” Commonwealth ex rel. McClain v. Locke et al., 72 Pa. 491 (1873)
- 233.
U.S. 506 (1911).
- 234.
U.S. 506 at 517, 521.
- 235.
U.S. 1, at 43 (1825).
- 236.
U. S. 394 (1928).
- 237.
Sec. 315 of Title III of the Tariff Act of September 21, 1922, 19 U.S.C.S., Sec. 154, 156, 42 Stat. 858 at 941.
- 238.
U. S. 394, 409.
- 239.
Schoenbrod 1993, at p. 35.
- 240.
Id.
- 241.
U.S. 406.
- 242.
“This therefore contains the Power of War and Peace, Leagues and Alliances, and all the Transactions, with all Persons and Communities without the commonwealth, and may be called Federative, if any one pleases. So the thing be understood, I am indifferent as to the name.” Locke, Par. 146.
- 243.
Monaghan “The Protective Power of the Presidency,” 93 Colum. L. Rev. 1 (Jan. 1993)
- 244.
Norwegian Nitrogen Products Co. v. United States 288 U.S. 294 (1933), 305. (in the course of the Tariff Commission process for changing the tariff assessment, initiated at the request of an American competitor that the existing rate, given much higher costs of production in the United States, disadvantaged it) It is interesting to note that Louis Jaffe 1965, at p. 60, note 91, misquotes (“legislative [sic] power” instead of “legislative process”) and therefore misinterprets the argument, as an early recognition by Cardozo that legislative power could be delegated but within limits. In fact, within the logic of the decision and Cardozo’s argument, he most likely meant what he said and said what he meant. This was a delegation of legislative process, since process is what he was referring to. The argument was that the object of the decision was not legislative in the classical sense of determining rights and duties but rather the determination, according to circumstance, of a mere privilege, by a legislative court. Thus further: “What was once a mere practice [i.e., providing interested parties with a hearing before changing tariff rates] has been converted into a legal privilege. But the limits of the privilege were not meant to be greatly different from those of the ancient practice that had shaped the course of legislation.”
- 245.
Id., at 318.
- 246.
Here I believe Carl Schmitt’s early identification of the tensions to be essentially correct, as was his appreciation that the practice of delegations and the judicial invalidation or admission of their constitutionality had cast a new light on the evolution of legislation and of fundamental constitutional principles. Schmitt 1936, at pp. 253–254.
- 247.
This is why nondelegation tests seem, as one author observed, fated to “[restate] the issue to be decided. But while their strength lies in the ability to suggest that, if they are properly applied, everything will be all right, their weakness lies in their inability to generate any consistent application. Legal argument about nondelegation consists of applying these tests to specific delegations of power, applications that generate contradictory conclusions: any delegation both does and does not satisfy the relevant results.” Gerald Frug, “The Ideology of Bureaucracy in American Law,” 97 Harv. L. Rev. 1276 (1984).
- 248.
Louis Jaffe, “An Essay on the Delegation of the Legislative Power I,” 47 Colum. L. Rev., 359, at p. 369 (1947).
- 249.
U. S. v. Vowell. See also supra.
- 250.
See Whitman v. American Trucking Association 531 U.S. 457 (2001), Justice Thomas, concurring.
“Although this Court since 1928 has treated the ‘intelligible principle’ requirement as the only constitutional limit on congressional grants of power to administrative agencies, seeJ. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 72 L. Ed. 624, 48 S. Ct. 348 (1928), the Constitution does not speak of ‘intelligible principles.’ Rather, it speaks in much simpler terms: ‘All legislative Powers herein granted shall be vested in a Congress.’ U.S. Const., Art. 1, § 1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than ‘legislative.’ As it is, none of the parties to this case has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers.”
- 251.
For instance, Cass R. Sunstein, “Changing Conceptions of Administration,” 1987 BYU L. Rev. 927, at p. 945 (1987), defending a certain measure of administrative independence from the President: “Such authorization might also be a necessary quid pro quo for the downfall of the nondelegation doctrine, which has allowed a large rise in presidential power.”
- 252.
U.S. 398 (1934). A Milk Control Board, according to a state statute empowering it to set minimum and maximum prices, had fixed the minimum retail price of milk at 9 cents per quart. Leo Nebbia was convicted for selling two quarts for 18, while throwing in a five cent loaf of bread.
- 253.
U.S. 502 (1934).
- 254.
Id., at p. 516: “The phrase ‘affected with a public interest’ can, in the nature of things, mean no more than that an industry, for adequate reasons, is subject to control for the public good.”
- 255.
Cited by Barber 1978, at p. 82.
- 256.
U. S. 388 (1935).
- 257.
Jaffe 1965, at p. 63.
- 258.
In Hawley 1966, at p. 130.
- 259.
Before that, Executive Orders were published yearly with the Statutes at Large. Yet, according to Jaffe, the practice was not unusual of not publishing Executive Orders that a president liked to keep away from public view. In the Federal Register all federal rules, regulations and orders are now officially published, daily, Monday through Friday. According to the Federal Register Act, 49 Stat. 500 (1935), 44 U.S.C. para. 307, no federal regulation, rule, order required to be published, until filed for publication “shall be valid as against any person who has no had actual knowledge” of it. The Code of Federal Regulations, updated yearly (and published on a quarterly basis), codifies the general and permanent rules published by the executive departments and agencies of the Federal Government in the Federal Register. It is organized under 50 titles organized according to subject matter.
- 260.
A. L. A. Schechter Poultry Corporation et al. v. United States 295 U.S. 495 (1935).
- 261.
Hawley 1966, at p. 33.
- 262.
In fact, since the deputy administrators were drawn from business circles as well, the result would be in effect “little more than a bargain between business leaders on the one hand and businessmen in the guise of government officials on the other.” Hawley 1966, at p. 57.
- 263.
The others were in relation to violations of N.Y. municipal ordinances and regulations and charges of conspiracy.
- 264.
See Stewart 1974-1975, at p. 1796, notes 579–581 and associated text, pointing out the fact that, after the demise of the N.I.R.A., direct and formal interest representation “has fallen into disrepute in the United States and Great Britain, in part because of a tendency to associate it with fascist corporate state programs” and giving an account of the actual operation of NIRA code-making practice similar to that provided by Hawley. In effect, the codes represented a government-sponsored bargain between big industry and organized labor interests at the expense of consumers and smaller employers.
- 265.
U.S. 238 (1936)
- 266.
At. 311.
- 267.
See Hawley 1966, at pp. 127–130 for an interesting description of the circumstances of the case. Anecdotically, Brandeis would reportedly tell one of Roosevelt’s advisors, after the reading of the decision: “This is the end of this business of cartelization, and I want you to go back and tell the President that we are not going to let this government centralize everything. It’s come to an end.” A. Schlesinger, The Politics of Upheaval, cited by Peter H. Aranson, Ernest Gellhorn, Glen O. Robinson, “ A Theory of Legislative Delegation,” 68 Cornell L. Rev. 1 (November 1982), FN 35.
- 268.
Ohio Valley Water Co. v. Ben Avon Borough et al. 253 U.S. 287 (1920), the rate determination made by a utility can be reviewed by a court (independent judgment) when charge would be made that the rate is confiscatory, statutory provisions ousting judicial review notwithstanding: “In all such cases, if the owner claims confiscation of his property will result, the state must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment.” (at 289) Ng. Fung Ho v. White, Commissioner of Immigration, etc. 259 U.S. 276 (1922) (judicial redetermination of the question of citizenship if raised in an immigration deportation proceeding). Johnson v. Robison 415 U.S. 361 (1974), a Veterans’ Administration determination of eligibility for educational benefits, if challenged under the equal protection clause of the Fifth Amendment, would be reviewed de novo, clause precluding judicial review notwithstanding.
- 269.
U.S. 22 (1931).
- 270.
Schechter, at 844.
- 271.
Id., at 848: “In view of the scope of that broad declaration and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered.”
- 272.
U.S. 602, at 624 (1935).
- 273.
U.S. 52 (1926).
- 274.
U.S. 624.
- 275.
“The theory of parliamentary representative government is built on the assumption of the early-nineteenth-century restrictive electoral system.” Sajó 1999, at p. 112, generally, “The Transformations of Parliament,” pp. 103–121.
- 276.
The qualification “primitive” is not used here in a pejorative sense but only to point out the fact that the individual Congressman is still dependent much more on his constituency than upon the party. Since the American electoral and party system did not fully evolve into common modern forms (streamlined decisionmaking, rigid party discipline), members of Congress enjoy a much larger degree of autonomy.
- 277.
See Jérôme Trémeau, La réserve de loi-compétence législative et Constitution (Aix-en-Provence: Presses Universitaires d’Aix-Marseilles, 1997), at p. 38. Also see for a similar and earlier argument Tingstén 1934, at p. 208.
- 278.
“L'Assemblée nationale vote seule la loi. Elle ne peut déléguer ce droit.”
- 279.
French post-war developments under the Fourth Republic (1946) Constitution will however be discussed in this sub-chapter, since they are in effect a continuation of the constitutional paradigm and constitutional-political problems of the Third Republic. The actual moment of contemporary break with the past, in French constitutional context, is the Fifth Republic Constitution (of 1958), which will be therefore addressed in the next section of the book.
- 280.
Peter L. Lindseth, “The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France 1920s-1950s” 113 Yale L. J. 1341 (May, 2004). Lindseth Peter L., The Contradictions of Supranationalism: European Integration and the Constitutional Settlement of Administrative Governance, 1920s-1980s (Ph.D. dissertation, Columbia University, Department of History, 2002 [on file with the author]).
- 281.
Id., at p. 1353.
- 282.
Carl Schmitt, “The Plight of European Jurisprudence” [“Die Lage der europäischen Rechtswisseschaft” 1943/44], G. L. Ulmen transl., 83 Telos 35 (Spring 1990), p. 67.
- 283.
See the account of this evolution (comparison between American and English administrative law) in Bernard Schwartz, Lions Over the Throne-The Judicial Review of English Administrative Law (New York and London: New York University Press, c1987) and Bernard Schwartz and Henry William Wade, Legal Control of Government: Administrative Law in Britain and the United States (Oxford: Clarendon Press, 1972).
- 284.
See András Sajó, “From Militant Democracy to the Preventive State?,” 27 Cardozo L. Rev. 2255 (2006), on the interaction between welfare-state- and counter-terrorism-related patterns of risk-prevention.
- 285.
In Schwartz 1987, p. 206.
- 286.
Ernst Forsthoff, Die Verwaltung als Leistungsträger (Stuttgart und Berlin: W. Kohlhammer, 1938), esp. 38 ff.
- 287.
Blackstone’s Commentaries 3 (1979 Chicago original facsimile edition).
- 288.
Blackstone’s Commentaries 156.
- 289.
The older rules of prospective application, statuta vetera, enacted in the aftermath of the Magna Charta, were deemed to be part of the law of the land irrespective of the originating authority. See, on these issues, Rudolph Gneist, The History of the English Constitution, Philip A. Ashworth translation (New York: G. P. Putnam’s Sons, 1886), Vol. II, esp. pp. 19–25. Gneist considers 15 Edward II to be the first express recognition of Parliament as a legislative assembly: “Revocatio novarum ordinationum anno 1223; les choses, qui serount à establir, soient tretées accordées et establies en parlaments par notre Sr. le Roi et par l’assent des Prelats, Countes et Barouns et la communaulté du roialme.” (FN 3, at p. 21). See also Charles Howard McIlwain, The High Court, at p. 313 and François Pierre Guillaume Guizot, History of the Origin of Representative Government in Europe, Andrew R. Scoble translation (London: Henry G. Bohn, 1852), at pp. 482–483: “Ordinances were not inscribed, like statutes, upon the rolls of Parliament; they were less solemn in their character, although their object frequently had reference to matters equally legislative and of equally general interest, such as the enactment of jurisdiction or of penalties. It is not more easy to clearly distinguish ordinances from statutes, than great councils from Parliaments properly so called. All that we can say is, that less importance and stability were attributed to this class of legislative measures.”
- 290.
The statute of York, in 1322, already provides that “thenceforward all laws respecting the estate of the crown, or of the realm and people, must be treated, accorded, and established in Parliament by the king, by and with the assent of the prelates, earls, barons, and commonalty of the realm.” In Guizot, supra, at p. 461.
- 291.
Henry VIII., c. 8 (1539). One can see that the “delegation” is actually checked by a fair number of legal safeguards, even by modern standards. For a study of the legislative activity of the Parliament during the reign of Henry VIII, challenging with many examples the received view that the Parliament was brow-beaten into submission by the king, see S. E. Lehmberg, “Early Tudor Parliamentary Procedure: Provisos in the Legislation of the Reformation Parliament,” Vol. 85 (No. 334) The English Historical Review 1–11 (Jan. 1970).
- 292.
Stat. I Edw. VI. C. 12.
- 293.
Blackstone is particularly critical of the practice: “Indeed, by the statute 31 Henry. VIII. c. 8. it was enacted, that the king’s proclamations should have the force of acts of parliament: a statute, which was calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his successor, about five years after.” 1 Blackstone’s Commentaries on the Laws of England 261 (Facsimile of the First Edition, Chicago & London: Chicago University Press, c1979).
- 294.
Case of Proclamations (1610) 12 Co. Rep. 74, K. & L. 78. In this landmark case, Coke’s opinion was demanded by the Crown in Privy Council as to whether the king could regulate by proclamations, under a penalty of a fine and imprisonment, the trade in starch and building restrictions in London. In a major inroad on royal prerogative, Coke advised that the king can, by proclamation, “for the Prevention of Offenses,” only require the subjects to obey the law (and then the proclamation ad terrorem populi would constitute an aggravating circumstance) but cannot create new crimes, enlarge the criminal jurisdiction of the Star Chamber or exceed a specific statutory authorization by an ultra vires act: “But a thing which is punishable by the Law, by fine and imprisonment, if the King prohibit it by his Proclamation, before that he will punish it, and so warn his subjects of the peril of it, there if he commit it after, thus as a Circumstance aggravates the Offence; but he by Proclamation cannot make a thing unlawful, which was permitted by the Law before; And this was well proved by the ancient and continuall form of Indictments, for all Indictments conclude, Contra legem & consuetudinem Angliae, or Contra leges & statuta, &c. but never was seen any Indictment to conclude Contra Regiam proclamationem.”
- 295.
A. V. Dicey, Introduction to the Study of the Law of the Constitution (London; N.Y.: Macmillan & Co., 1965), at pp. 50–54.
- 296.
Francis Bacon, The Works of Francis Bacon [7] (Newcastle: Cambridge Scholars Publishing, 2010), p. 251.
- 297.
In 1697, capital punishment for treason was meted on Sir John Fenwick by an Act of Parliament Act 8 & 9 Will. III c. 4. See discussion on attainder in F. W. Maitland Maitland, The Constitutional History of England (Cambridge: Cambridge University Press, 1963), p. 386, giving later examples of bills of pains and penalties, which will continue to be used even after the harsher practice of attainder bills is discontinued (the banishment of Atterbury in 1720, the 1876 disfranchisement for bribery, by act of parliament, of certain voters for the City of Norwich). More generally on attainder, “The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause” Note, 72 Yale Law Journal 330 (1962–1963).
- 298.
See, for a detailed list, the statistics in P.S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979), pp. 91–95. Also see Maitland 1963, at p. 383, for an equally edificatory taxonomical breakdown of the Statute book for the year 1786: “There are 160 so-called public acts, and 60 so-called private acts. But listen to the titles of a few of the public acts: an act for establishing a workhouse at Havering, an act to enable the king to license a playhouse at Margate, an act for erecting a house of correction in the Middlesex, an act for incorporating the Clyde Marine Society, an act for paving the town of Cheltenham, an act for widening the roads in the borough of Bodmin. Fully half of the public acts are of this petty local character. Then as to the private acts, these deal with particular persons: an act for naturalizing Andreas Emmerich, an act for enabling Cornelius Salvidge to take the surname Tutton, an act for rectifying mistakes in the marriage settlement of Lord and Lady Camelford, an act to enable the guardians of William Frye to grant leases, an act to dissolve the marriage between Jonathan Twiss and Francis Dorrin….One is inclined to call the last century the century of privilegia.” Similar statistics and comments relevant to our argument are also provided by the introduction to David Lieberman’s The Province of Legislation Determined-Legal theory in eighteenth-century Britain (Cambridge: Cambridge University Press, 1989), pp. 1–28.
- 299.
Maitland 1963, at p. 383.
- 300.
Fletcher v. Lord Sondes, unreported decision, cited by Atiyah, Rise and Fall, at p. 96.
- 301.
Atiyah, p. 69 ff. Grimm, Recht und Staat, pp. 170–175, 195 ff.
- 302.
Grimm, p. 174.
- 303.
Atiyah, at pp. 250–255.
- 304.
Id., at pp. 253–254.
- 305.
Walter Bagehot, The English Constitution, revised American edition (New York: D. Appleton & Company, 1892).
- 306.
See, for a thorough discussion, Vile 1967, Chapter VIII, “The Rise and Fall of Parliamentary Government,” pp. 212–238.
- 307.
Rt. Hon. Lord Hewart of Bury, The New Despotism (London: Ernest Benn, 1929). For a more restrained contemporary pamphlet, see Carleton Kemp Allen, Bureaucracy Triumphant (London: Humphrey Milford: Oxford University Press, 1931).
- 308.
“The truth is that if Parliament were not willing to delegate law-making power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires.” Committee on Ministers’ Powers Report, H.M.S.O. (Cmd. 4060) (1932), at p. 23. For contemporary comments on the Report, see John Willis “The Delegation of Legislative and Judicial Powers to Administrative Bodies-A Study of the Report of the Committee on Ministers’ Powers,” XVIII Iowa Law Review 150 (1932–1933) and Arthur Suzman “Administrative Law in England: A Study of the Report of the Committee on Ministers’ Powers,” XVIII Iowa Law Review 160 (1932–1933).
- 309.
Sometimes referred to as “Henry VIII clauses,” these are provisions in statutes allowing for the modification of the enabling act by secondary legislation (statutory instruments), without parliamentary authorization. See discussion above.
- 310.
Hewart 1929, at p. 75. Also, in Kemp 1931, at p. 8: “In all these matters, legislative and judicial, what is really happening is that Parliament is getting rid of its own responsibilities. It is a short and easy method of legislation to delegate wide and ill defined powers to subordinate bodies, etc.”
- 311.
The prerogative, to which we have already referred, is the sovereign and original power of the Crown to legislate, by Order in Council, independent of the authority of the Houses of Parliament. It was used in the past to legislate for a newly conquered territory and could still be invoked to regulate trade and commerce during war-time (e.g., the ‘Second Reprisals Order,’ of 16th of February 1917, an Order in Council establishing a blockade of enemy territory), although the most common modern means of dealing with emergencies of all kinds is the sweeping enabling act. The judiciary could historically be relied on, moreover, to remind the Executive that the Crown cannot alter the law of the land by Order in Council (see, for instance, The Zamora [1916] 2 A.C. 77).
- 312.
For instance, a Royal Commission on Carrots, empowered by an Act of Parliament to make regulations and issue quality standards respecting carrots, to inspect carrot farms, and prohibit the commercialization of substandard carrots, the observance of its rules and regulations made a misdemeanor subject to a fine, is not a delegate of Parliament in a constitutional sense, since Parliament is under no constitutional obligation to either legislate at all or legislate in a substantively recognizable way or with a given degree of specificity. Conversely, without parliamentary authorization, the Commission could not have existed in the first place. In the unlikely case such Commission would have been created by a prerogative Order in Council, its nosy inspectors could have been legally chased off the farm and even shot for trespass by a hypothetical carrot farmer. For this lively exemplification and a score of other helpful comments and sobering conversations, I am indebted to Stephen Scott, Professor Emeritus of Constitutional and Public Law (private conversation, McGill University, Winter 2003).
- 313.
The Constitution Act of 1867 primarily governs the division of legislative powers between the Federal Government and the Provinces. Inter-delegation (between the legislatures) was declared unconstitutional in a decision by the Supreme Court of Canada on a complementary delegation to effect a cooperative provincial-federal old age pension scheme. Nova Scotia Inter-delegation case of of 1950, Attorney-General of Nova Scotia v. Attorney General of Canada [1951] S.C.R. 31. See comments in Peter W. Hogg, Constitutional law of Canada (Scarborough, Ont.: Carswell, c2003), 14-Delegation, pp. 327–356.
- 314.
Archibald G. Hodge v. The Queen (1883), 9 AC 117, at 132. In one of the war-time ‘delegation’ decisions, In Re Gray, 57 S.C.R. 150 [1918], an Order in Council passed under the authority of the War Measures Act of 1914, was attacked on nondelegation grounds, since derogating from a statutory provision in the Military Service Act of 1917. The Justices of the Supreme Court of Canada, while sustaining the executive measure, indicated that, in principle, ‘abandonment,’ ‘abdication’ or ‘surrender’ by Parliament of its legislative powers would, nonetheless, be unconstitutional: “ Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government.” (Per Fitzpatrick, C.J.). But cf. Hogg 2003, at p. 330: “In effect, the War Measures Act transferred to the federal cabinet virtually the whole legislative authority of the parliament for the duration of the war. The Court held that even a delegation as sweeping as this one was valid….[S]ince none of the majority judges regarded the War Measures Act as an unconstitutional abdication, abandonment, surrender, it is not easy to imagine the kind of delegation that would be unconstitutional. Nor did the judges indicate how their suggested limitation was to be reconciled with the Hodge doctrine of plenary and ample power; or, to put the question in another way, what principle of constitttional law dictated the suggested limitation.”
- 315.
W. H. Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business,” 17 (1) Osgoode Hall Law Journal 1 (April 1979).
- 316.
Paul R. Verkuil, “Crosscurrents in Anglo-American Administrative Law,” 27 Wm. & Mary L. Rev. 685 (1986), 686: “In his influential 1908 treatise, A. V. Dicey, Vinerian Professor of English Law, effectively interred the idea of administrative law in England by denying its existence.”
- 317.
For a more sympathetic reception, see, for instance, John A. Rohr, “Dicey’s Ghost and Administrative Law,” 34 (1) Administration and Society 8–31 (March 2002).
- 318.
A. V. Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis: Liberty Fund, 1982 (1915)).
- 319.
Id., p. 110.
- 320.
Ibid., p. 120.
- 321.
“[An English official] who exceeds the authority given him by the law incurs the common law responsibility for his wrongful act; he is amenable to the authority of the ordinary courts.” Law of the Constitution 389.
- 322.
Martin Shapiro, Who Guards the Guardians-Judicial Control of Administration (Athens and London: Georgia University Press, c1988), at p. 37: “What condemned continental administrative law in the eyes of English liberals was that it provided a special status for the state.”
- 323.
Id., at p. 36.
- 324.
[1915] AC 120 (Eng. HL).
- 325.
Law Quarterly Review (1915) 148–153.
- 326.
Id., at p. 152: See, in the same key, Dyson v. Attorney-General [1911] 1 K.B. 410, at p. 424: “If ministerial responsibility were more than the mere shadow of a name, the matter would be less important, but as it is, the Courts are the only defence of the liberty of the subject against departmental aggression.” (per Farwell, L.J.).
- 327.
“In the Diceyan, common law understanding of the rule of law, the legislature has a monopoly on law-making authority, while the judges have a monopoly on interpretation….However, the judges’ interpretive monopoly is still subordinate to the monopoly on legislation. Judicial interpretations of the law must always defer to clear expressions of parliamentary intent-the common law will give way to legislation, no matter how offensive the statute is to the values of the common law or to moral sensibilities. Indeed, the common law has ultimately the same extra-legal guarantees against legislative disruption as general moral sensibilities, for when the common law does have to give way to statute, the remedy for the disruption to its order is to be found outside the law, in the source from which the disruption emanated-in democratic politics.”David Dyzenhaus and Evan Fox-Decent, “Rethinking the Process/Substance Distinction: Baker v. Canada” 51 U. Toronto L. J. 193 (Summer, 2001), at p. 198.
- 328.
[Where such a constitution does not exist, the delegation of legislative power, however criticizable rationally, will raise no juridical objection, and thus will be legally permissible. In such a [constitutional] context the legislative power disposes liberally, in a sovereign manner, over whichever subject. It can modify the relationship between the public powers, it can freely amend and change the constitution. Why could it not also do less and momentarily interchange the roles assigned by the said constitution?]
- 329.
[In effect, the delegation of legislative power, just like the delegation of any other constitutional prerogative, is juridically impossible.].
- 330.
Georg Jellinek, Gesetz und Verordnung: staatsrechtliche Untersuchungen auf rechtsgeschichtlicher und rechtsvergleichender Grundlage (Freiburg I.B.: Mohr, 1887), p. 85 ff.
- 331.
Id., at p. 90.
- 332.
See Bourdeau 1995, at pp. 366–385.
- 333.
As Maurice Duverger describes the evolution: “[C]elui-ci [the parliament] ne veut pas prendre de responsabilite à cet égard, sachant qu’il est impossible d’abroger les décrets-lois et n’acceptant pas de les cautioner. Les décrets-lois continuent donc à s’appliquer sans être ratifiés.” Also, further “Le procédé des décrets-lois est contraire à la Constitution, car les compétences ne se délèguent pas en droit public: le Parlement n’a pas le droit de déléguer son pouvoir legislatif au gouvernement. La nécessité pousse à modifier ainsi la Constitution par l’usage, par la coutume, et les décrets-lois finissent par être considérés comme normaux.” Maurice Duverger, Le système politique français (Paris: Presses Universitaires de France, 1990), pp. 125–126. Also see a more thorough legal analysis in Joseph Barthélemy and Paul Duez, Traité de droit constitutionnel (Paris: Librairie Dalloz, 1933), “Le Règlement,” pp. 772–782. See also, more generally, Otto Kirchheimer, “Decree Powers and Constitutional Law in France under the Third Republic,” 34 (6) American Political Science Review 1104 (Dec., 1940).
- 334.
The common problem is of course specifying what delegation means in a given context, given that a certain amount of discretion is indispensable.
- 335.
Léon Duguit, “Des règlements faits en vertu d’une compétence donnée au gouvernement par le législateur,” Revue du droit public et de la science politique en France et à l’étranger, p. 313–349, at p. 327.
- 336.
“Verfassungsrecht vergeht, Verwaltungsrecht besteht.” Otto Mayer, Deutsches Verwaltungsrecht, 3. Aufl. 1924, Vorwort.
- 337.
C.E. 6 déc 1907, Rec. 913, concl. Tardieu, reported and commented in M. Long, P. Devolvé, G. Baibant, P. Weil, B. Genevois, Les grands arrêts de la jurisprudence administrative (Paris: Sirey (Éd. Dalloz), 10th edition, 1993), pp. 100–105, at p. 100.
- 338.
Currie 1994, at p. 131.
- 339.
Raymond Carré de Malberg, La loi, expression de la volonté générale (Paris : Sirey, 1931), at p. 74 : “A un premier point de vue déjà, il ressort du concept actuel de la loi que la puissance législative n’est pas susceptible en soi d’être déléguée. D’après la Constitution, elle a, en effet, pour l’un de ses caractères spécifiques d’être une puissance initiale, s’exerçant spontanément, d’un seul jet, et d’une façon autonome. Une puissance déléguée ne peut donc plus être de la puissance législative. Ainsi, dès que l’on constate que le pouvoir réglementaire ne peut se mettre en mouvement qu’à la suite de et en vertu d’une habilitation, il devient manifeste que le règlement ne rentre plus dans la notion constitutionnelle de pouvoir législatif.”
- 340.
Ross 1958.
- 341.
The less political participation in the State was actualized, the more important was freedom from the State.
- 342.
Edictum Pistense, a. 864, § 6, In Jellinek, at p. 101.
- 343.
Id., pp. 101–102.
- 344.
The rationalization of German absolutism was however checked, until the end of the Holy Roman Empire of German Nation, by the imperial courts, which functioned on a medieval (acquired rights) template. Grimm, Recht und Staat, p. 88.
- 345.
Ibid. p. 103.
- 346.
Ibid, note 15, p. 104.
- 347.
Immanuel Kant, Metaphysik der Sitten, § 45–49.
- 348.
Böckenförde, Gesetz und gesetzgebende Gewalt, at p. 108.
- 349.
See general discussion on the nineteenth century German and Austrian state law (Staatsrecht) commentaries regarding the proper constitutional “nature” of budget laws (legislative or executive-administrative) in Georg Jellinek, Gesetz und Verordnung, pp. 169–177.
- 350.
“Alles Leben spottet der von Außen an dasselbe herangebrachten Kategorien.” Id., at p. 223.
- 351.
Id., pp. 79 ff.
- 352.
§ 50 Das allgemeine Wohl ist der Grund der Gesetze.
- 353.
§ 77 Das Wohl des Staates überhaupt, und seiner Einwohner insbesondere, ist der Zweck der bürgerlichen Vereinigung, und das allgemeine Ziel der Gesetze.
- 354.
In Conrad, Die geistigen Grundlagen, at p. 47. See general discussion in same, passim.
- 355.
Forsthoff, Deutsche Verfassungsgeschichte, 93 ff.
- 356.
See Jellinek, Gesetz und Verordnung, p. 94: “Der ganze Bau der Staatsverwaltung bleibt so bestehen, wie ihn die Revolution vorbereitet und bereits das Consulat ausgeführt hatte. Insofern war es allerdings eine hohle Phrase, wenn Ludwig XVIII. die aus seiner Gnade entspringende Verfassung anknüpfen wollte an die legislatorische Thätigkeit seiner Vorfahren von Ludwig dem Dicken bis Ludwig XVI.”
- 357.
Cf. Dietrich Jesch, Gesetz und Verwaltung: Eine Problemstudie zum Wandel des Gesetzmäßigkeitsprinzipes (Tübingen: J.C.B. Mohr (Siebeck), 1961), p. 83.
- 358.
Grimm, Deutsche Verfassungsgeschichte, p. 114 ff.
- 359.
Böckenförde, Gesetz und gesetzgebende Gewalt, p. 71 ff, Grimm, Deutsche Verfassungsgeschichte, p. 113 ff., Jellinek, Gesetz und Verordnung, p. 110.
- 360.
The normative division between ordinances and legislation in the imperial constitution of 1871 (Verfassung des Deutschen Reiches, commonly referred to as Bismarksche Reichsverfassung) reflected the federal partition of power between the Reich and the member states. It is therefore of no relevance to this argument.
- 361.
Jesch, Gesetz und Verwaltung, p. 91.
- 362.
Thus related and insightfully, Maier, Die ältere deutsche Staats- und Verwaltungslehre, p. 248: “Man mag im Nachhinein geneigt sein, festzustellen, dass die Bindung an das Gesetz als generelle abstrakte Norm (und damit die Entstehung einer Verwaltungsrechtswissenschaft, die wesentlich den rechtsstaatlichen Gesetzesvollzug zum Inhalt hatte) erst möglich wurde mit der Eliminierung des Wohlfahrtszwecks und der Beschränkung der Polizei auf bloße Gefahrenabwehr.”
- 363.
Maier, at p. 245.
- 364.
§ 3 II 13 (“…für Anstalten zu sorgen, wodurch den Einwohnern Mittel und Gelegenheit verschafft werden, ihre Fähigkeiten und Kräfte auszubilden, und dieselben zur Beförderung ihres Wohlstandes anzuwenden.”).
- 365.
§ 10 II 7. See discussion in Peter Badura, Das Verwaltungsrecht des liberalen Rechtsstaates (Göttingen: Otto Schwartz & Co., 1967), pp. 34–35.
- 366.
There are in fact two decisions (Erkenntnisse), of June 10, 1880 and June 14, 1882, respectively. In Preußisches Verwaltungsblatt (1) 1879/1880, S.401 ff. and (3) 1881/1882, S. 361 ff. They are cited here from the reprint in Deutsches Verwaltungsblatt DVBl, 1985, 216, 219.
- 367.
Id., p. 222.
- 368.
Otto Mayer, Deutsches Verwaltungsrecht, dritte Auflage, unveränderter Nachdruck (Berlin: Duncker & Humblot, (1924) 2004), at p. 66.
- 369.
Id., p. 72.
- 370.
Grimm, Recht und Staat, p. 90.
- 371.
Forsthoff, Deutsche Verfassungsgeschichte, p. 110.
- 372.
See generally, Ralf Dahrendorf, Gesellschaft und Demokratie in Deutschland (München: Piper & Co., 1965).
- 373.
Grimm, Recht und Staat, pp. 150-151
- 374.
Grimm, Recht und Staat, p. 103. See generally, Badura, Das Verwaltungsrecht des liberalen Staates and Forsthoff, Verwaltung als Leistungsträger.
- 375.
Forsthoff, Deutsche Verfassungsgeschichte, p. 185: “Constitutionally speaking, the autonomy of the civil society (bürgerliche Gesellschaft) came to an end during WWI. The clear separation between state and society, the dialectical relationship of togetherness and conflict, between the society based on natural human inequality and the state based on civil equality, did not reemerge after the war.”
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2012 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Iancu, B. (2012). The Constitutional History of Delegation: Rules and Changes. In: Legislative Delegation. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-22330-3_3
Download citation
DOI: https://doi.org/10.1007/978-3-642-22330-3_3
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-22329-7
Online ISBN: 978-3-642-22330-3
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)