Delegation of Powers

BIBLIOGRAPHY

Delegation of powers is the act whereby a political authority invested with certain powers turns over the exercise of those powers, in full or in part, to another authority. Accordingly, the powers of the delegate are precisely those that belonged to the delegant, and the actions performed in virtue of the delegation have the same juridical nature as if they had been performed by the delegant himself. Delegation should not, therefore, be regarded as permission or authorization; rather, it is a transfer of power. The fundamental problem then is to find out whether, and to what extent, that transfer is legitimate in the realm of public law.

When delegation is legally provided for there is no difficulty. This is often the case on the administrative level; the organizational regulations of a bureau authorize its head to turn the exercise of his powers over to another official. It should be noted, however, that even when delegation is authorized by existing law, it is subject to very precise conditions. In the first place, the right to exercise delegation cannot be presumed. Furthermore, those actions for which the right of delegation is granted must be clearly indicated. Finally, delegation must necessarily be limited in time.

In constitutional matters, the problem is more delicate. Since it arises in relations between legislative and executive branches of government, it has political implications that can lead to deviations from the strict application of legal principles. In practice the question is whether, in the absence of constitutional provisions authorizing the legislature (parliament or congress) to strip itself of its competence, it can entrust the executive with the right to take regulatory measures that will have the force of law. In cases where a constitution reserves certain areas to the competence of a legislative body, delegation would have the effect of bringing about a transfer of functions from the legislative branch to the executive; and in every case, delegation would achieve a transfer of powers.

Critique. Theoretically it is impossible to delegate the legislative power (or any other prerogative) given by a constitution to a legislature. This position is based both on a legal argument and on a consideration of common sense. Legally, one can only delegate a power that one possesses. But the power to legislate is not a right of the legislative houses; it is a function entrusted to them by a constitution, to exercise and not to dispose of at will. Common sense reinforces the legal principle. Locke was the first to show that when the people, by means of a constitution, grant the power of making laws to a given agency, it is because they have confidence in that agency. They feel that the way the agency is constituted and the procedures it has to follow will guarantee that the rules made will merit obedience. “The people,” Locke wrote, “can[not] be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them” (Two Treatises of Government [1690] 1960, n, sec. 141).

In opposition to delegation, one could also invoke the principle of the separation of powers, saying that it would be violated if, under cover of an invitation by parliament, the executive could adopt measures that, by their nature and object, were veritable laws. Finally, for those who, especially in France, identified democracy with the omnipotence of the houses of the legislature, delegation would endanger the very idea of democracy, since on the one hand it appeared to be a means of imposing obligations on individuals that their representatives would not have consented to; and on the other hand, by reinforcing the scope of the government’s actions, it could justly be suspected of favoring the views approved of by the government.

Historical development. The theoretical force of these arguments opposing the concept of the delegation of power could not prevail against the actual necessities that have compelled governments to resort to it in almost every country. These necessities arose in two areas, war and economic catastrophe, and in two successive waves, World War I and the depression. The war of 1914–1918, when the bitterness of the struggle entailed mobilization of all the forces of the nation, made it necessary to concentrate all powers in the hands of an agency able to use them promptly. Since this agency could only be the executive, the latter was granted power by the parliaments to regulate affairs that in normal times would have called for a legislative vote. In France, the first laws extending the regulatory powers of the government were adopted on August 3 and 5, 1914; they regarded only matters of limited scope. Subsequently, although special laws had enlarged the government’s power to act, it promulgated, on its own accord, measures called decrets-lois, which properly belonged exclusively within the competence of the parliament.

In England it has always been held that, in the absence of a written constitution, Parliament is sovereign and can therefore delegate to an agency of its choice any or all of its legislative competence. Nevertheless, although such instances of delegation were known for a long time (for example, by the Mutiny Act of 1717, Parliament transferred to the crown all regulation of discipline in the army), they remained exceptional and, furthermore, did not entirely divest Parliament of those powers. In point of fact, the historical practice of delegated legislation that had become fairly widespread during the nineteenth century came down to this: Parliament itself established the broad principles of regulation; the subordinate authority was empowered to adapt them to actual situations. In 1914 there was a clear-cut change; the Defence of the Realm (Consolidation) Act gives the government the broadest powers and introduces crisis legislation into the framework of delegated legislation. This category of delegation goes much farther since it does not in any way limit the liberty of the executive.

In the United States, the principle that Congress cannot delegate its legislative powers can be modified by a broad interpretation of the function of the president. It is admitted that in a period of crisis or war, the president can do anything that is needed to preserve the Union. Applying this idea, originally held by Lincoln and Theodore Roosevelt, President Wilson, during World War I, took steps that normally would come under the competence of Congress. Even among the neutrals, the international crisis led to a transfer of legislative powers from the legislative branch to the executive branch. Thus, in Switzerland, on August 3, 1914, the federal assembly granted full powers to the federal council.

Since the motive for the extensive delegation of power was war necessity, it might have been thought that the delegation would end when the war ended. Nothing of the sort happened. After the conflict, a new wave of delegation appeared, this time provoked by economic difficulties. In France, financial emergencies led successive governments to ask parliament for the power to legislate by decrees; in England, delegated legislation became a normal governmental procedure; in Switzerland, the economic crisis of 1930 led to a new extension of the powers of the federal council. In the United States, President Roosevelt had recourse to his statutory powers, i.e., those that a president has under an express delegation from Congress, to regulate by executive order matters that are normally reserved to formal law. The international tension from 1948 on has led American presidents to take similar actions.

Since that time it has become impossible to regard delegation of the legislative power as a mere expedient, legitimate only to meet a crisis situation. The volume of legislative measures taken by the executive in many states often exceeds the number of laws adopted by their legislatures. Experience has shown that even under normal conditions the legislative bodies can no longer claim a monopoly of legislation. In the ideal liberal state, the right to make laws is reserved solely to the national representatives because laws are few in number and very general in their content, being only a last resort intended to help overcome the inadequacies of the social order. But the modern conception of democracy calls more and more frequently for intervention by the state. The number of regulations required and their technical nature make legislatures increasingly incapable of issuing them. Furthermore, the executive, being obliged to act and to act quickly, can no longer wait for the legislative branch to decide whether to grant the government the laws it needs for its policies. Governments need to have the power to work out general policy and to issue freely the regulations necessary for its implementation.

These facts were recognized in England in 1932 by the Committee on Ministers’ Powers (Donough-more Committee), which was charged with studying the legality of delegated legislation. In the United States, these facts were recognized in 1949 by the Commission on Organization of the Executive Branch of the Government (Hoover Commission). In both countries, it was held that legislation by the executive was not unconstitutional so long as it left room for control a posteriori, either by parliament (in England) or by the courts (in the United States). This control can indeed be effective, as was shown in 1952 by the Supreme Court decision declaring unconstitutional President Truman’s seizure of the steel mills. In Europe, some constitutions drafted between the two wars granted the executive the right to legislate by decree under exceptional circumstances (Polish constitution of April 23, 1935, articles 55 and 57; Austrian constitution of December 7, 1929, article 18; Spanish constitution of December 9, 1931, article 80; etc.). After World War ii, the possibility of the delegation of the legislative power was expressly recognized by the Italian constitution (article 77) and the fundamental law of the German Federal Republic (article 80). In France, on the other hand, the obloquy that the use of decrees had cast on parliament, which was accused of evading its responsibilities, led the authors of the 1946 constitution to insert, in article 13, the rule that parliament alone makes law. In fact, however, from 1948 on, by more or less disguised procedures, all the governments of the Fourth Republic asked parliament for the power to legislate, and obtained it. The 1958 constitution, taking cognizance of what has become an unavoidable necessity in a modern state plainly incorporated legislation by the executive branch. Not only can the executive, by virtue of article 37, legislate by decree on any matters not reserved to parliament by article 34, but article 38 gives it the power of asking the houses of parliament for a delegation of power to legislate even on those matters that are reserved to parliament.

G. Burdeau

[See alsoConstitutional law; Crisis government; Legislation.]

BIBLIOGRAPHY

Allen, Carleton K. (1945) 1956 Law and Orders: An Inquiry Into the Nature and Scope of Delegated Legislation and Executive Powers in English Law. 2d ed. London: Stevens.

Batelli, Maurice 1950 Chronique constitutionnelle étrangère: Suisse. Revue du droit public et de la science politique en France et à I’etranger 66; 124–146.

Binkley, Wilfred E. (1937) 1947 President and Congress. 2d ed. New York: Knopf. → A third revised edition, in paperback, was published in 1962 by Vintage Books.

Burdeau, Georges 1949–1957 Traité de science politique. 7 vols. Paris: Librairie Général de Droit et de Jurisprudence.

Carr, Cecil T. 1921 Delegated Legislation. Cambridge Univ. Press.

Corwin, Edward S. (1940) 1957 The President: Office and Powers. 4th rev. ed. New York Univ. Press.

GÓmez-Acebo, Ricardo 1951 El ejercicio de la functión legislativa por el gobierno: Leyes delegadas y decretosleyes. Revista de estudios politicos 40, no. 60:67–97.

LafferriÉre, J. 1956 La lègislation déléguée en Angle-terre et le contrôle de son exercise par le Parlement. Pages 331–357 inL’évolution du droit public; Études offertes è Achille Mestre. Paris: Sirey.

Locke, John (1690) 1960 Two Treatises of Government. Cambridge Univ. Press.

Logan, D. W. 1944 Post-war Machinery of Government. Political Quarterly 15:185–195.

Manuel, AndrÉ 1953 Les pleins pouvoirs en droit public federal Suisse. Lausanne (Switzerland): Jaunin.

Neustadt, Richard E. 1955 Presidency and Legislation: Planning the President’s Program. American Political Science Review 49:980–1021.

Roche, John P. 1952 Executive Power and Domestic Emergency: The Quest for Prerogative. Western Political Quarterly 5:592–618.

Soubeyrol, Jacques 1955 Les décrets-lois sous la Quatrième République. Bordeaux (France): Samie.

Tingsten, Herbert 1934 Les pleins pouvoirs: L’expansion des pouvoirs gouvernementaux pendant et apres la grande guerre. Publication du Fonds Descartes. Paris: Srock, Delamain & Boutelleau.

Tunc, AndrÉ 1952 Les pouvoirs du président des ÉtatsUnis et Tarret de la Cour Suprême relatif à la saisie des aciéries. Revue internationale de droit comparé 4: 735–751.

Visscher, Paul de 1947 Les nouvelles tendances de la democratic anglaise: L’expérience des pouvoirs spéciaux et de pleins pouvoirs. Paris: Casterman.

Weyr, Francois 1926 La question de la délégation de la puissance législative. Revue internationale de la théorie du droit 1:72–88.

Delegation of Powers An often‐repeated proposition of Anglo‐American law is that delegated authority cannot be redelegated. In the case of the Supreme Court, the doctrine of nondelegation purportedly derives from the Constitution, although admittedly without any basis in the constitutional text. The usual argument for the invalidity of delegation of powers turns on the concept of separation of powers, that is, the forbidding of certain general powers to one or another of the general branches of government. Actually, there are few specific constitutional provisions for the separation of powers. There are provisions for checks and balances among the three branches of government, however. Separation of powers would create monopolies of certain powers in particular branches; checks and balances forbids such monopolies and, in fact, generally requires the joinder of two branches before governmental action is validated. Thus, the legislature cannot enact a law without presidential approval or, if the president disapproves, a two‐thirds overriding vote of each house; the judicial branch cannot pass judgment except within legislatively defined limits specified by statute; no one may expend moneys except those appropriated by the legislature and according to the terms specified by the legislature.

The Court has adhered to a limited concept of separation of powers not unlike that prescribed by the Massachusetts Constitution of 1780. Within this judicially recognized doctrine of separation of powers it has spoken of a nondelegation of powers by one branch to another. In cases such as Field v. Clark (1892) the issue has usually involved delegation of legislative power to the executive branch. But the doctrine applies to the other branches as well. Congressional authority has often been shared with or delegated to another branch of government, but, as under most constitutional doctrines, the question has not been whether the executive branch is exercising any legislative power but whether it is exercising too much legislative power. “How much is too much?”—is the question that tries the capacities of the justices.

It should be noted that the Supreme Court, for all the lip service it has paid to the so‐called doctrine of invalid delegation, has only once in its history struck down legislation as unconstitutional on this ground. In the mid‐1930s, when the Court was rapidly disabling New Deal legislation, the Court concluded in three cases (Panama Refining Co. v. Ryan, 1935; Schechter Poultry Corp. v. United States, 1935; Carter v. Carter Coal Co., 1936) that Congress had improperly provided for delegation of legislative power. But the holdings in these New Deal cases could not have been based on a theory of separation of powers, because, as the majority said in Carter, this was delegation “in its most obnoxious form, for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and are adverse to the interests of others in the same business” (p. 311).

The concept of invalid delegation of legislative power is phoenixlike in its appearance in American judicial history, burning fiercely from time to time, turning to ash, then reviving. It was thought to have been ultimately disposed of in Yakus v. United States (1944). In that case, Congress had granted price‐fixing powers to the Office of Price Administration during World War II without specifying any standards for guidance except that the prices fixed be “fair and equitable.” The statute was sustained despite the challenge of invalid delegation, a doctrine not seriously raised again for a generation. The Court had already decided, in United States v. Curtiss‐Wright Export Corp. (1936), that the “invalid delegation doctrine” had less bite in the area of foreign affairs than in domestic law.

Every branch of government of necessity exercises some rule‐making, enforcement, and adjudicative powers. Since no totally pure system of separation of powers can exist, the problem of delegation is likely to arise in each of the three branches. Thus, while the Constitution gives the exclusive power to impeach government officials to Congress, it leaves criminal prosecution of such officials to law enforcement, that is to the executive branch. Where the official suspected of wrongdoing is in a sufficiently influential position, it is sometimes thought necessary to go outside the administration for prosecution to ensure a fair and unbiased proceeding. Congress has provided for appointment of a special prosecutor under such circumstances. Once again, problems of invalid delegation of authority arise. The special prosecutor is an executive‐branch official, so under what circumstances can the president be prevented from discharging him or her? That question arose during the Watergate scandal of the early 1970s but did not receive judicial resolution. A decade and a half later, in Morrison v. Olson (1988), a case that arose out of the Iran‐Contra scandal, the Court held that the special prosecutor arrangement was a valid delegation of power.

Thus, in Morrison the doctrine of invalid delegation reappeared, only to be rejected once again. Though objection was made to empowering the appointment of a special prosecutor who could not be removed even by the president except for “good cause shown,” the displacement of ordinary, attorney general–supervised processes and the consequent delegation of executive power were sustained. The following year, when a challenge was made to the promulgation of sentencing guidelines in criminal cases by appointees of the president, replacing the judicial power that had previously been exercised, the “invalid delegation” rubric was again found inadequate (Mistretta v. United States, 1989).

Most recently, the Court revisited the issue in Whitman v. American Trucking Associations, Inc. (2001), and once again the justices reiterated their nondelegation holding, in this instance in support of the Environmental Protection Agency. Writing for a unanimous Court, Justice Antonin Scalia adamantly explained that only Congress can cure an unconstitutional delegation, because only Congress has the power to delegate such power in the first place. Moreover, the Court noted, only the courts (not Congress or the agency) have the power to determine whether the delegation is constitutional. The Court in American Trucking maintained a lenient application of the non‐delegation doctrine in a manner consistent with the past seventy years of precedent. The decision marked an apparent departure for Chief Justice William H. Rehnquist, who during the 1980's had twice called for a stricter application of the non‐delegation doctrine.

Given the current trend toward an ever‐expanding administrative state, and given the Court's unanimous position in American Trucking, it seems likely that the nondelegation doctrine will continue to exist in name only. However, the Court's recent actions suggest that the justices may well be more willing to allow an agency unfettered adjudicatory power, as opposed to unfettered rule‐making power.

Invalid delegation is spoken of as a constitutional question, but it is more likely to be used as a standard of statutory construction than one of constitutional validity. It adds one more device to the judicial arsenal for shaping national legislation closer to the Court's predilections and almost never serves as a rule of decision.

Bibliography

Amee B. Bergin , Does Application of the APA's ‘Committed to Agency Discretion’ Exception Violate the Nondelegation Doctrine? Boston College Environmental Affairs Law Review 28 (2001)

Philip B. Kurland

Kermit L. Hall

DELEGATION OF POWERS

DELEGATION OF POWERS refers to the practice of empowering one part of government to act in the name of another. The extent to which any branch of government may delegate power, however, remains in question. For example, the courts have often said that Congress as a recipient of delegated power from the people through the Constitution may not further delegate its legislative powers to other agencies of government. At the same time they have admitted that Congress can adopt only a general policy, which must be implemented by others in unanticipated circumstances and contexts. The U.S. Supreme Court stated in 1940 that "delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility," and the Court has voided only three delegations of power by Congress: Panama Refining Company v. Ryan (1935), Schechter Poultry Company v. United States (1935), Carter v. Carter Coal Company (1936).

Three types of delegation can be identified. The first leaves to a person or agency the task of filling in the details and elaborating on the implementation of general policy. This, the most common type of delegation, is exemplified in the Interstate Commerce Commission being directed to ensure that railroad rates are "reasonable." A second type is contingency delegation. In this type, legislation is passed that will go into effect or be suspended when the executive branch determines that a specified situation exists. Tariff laws, for example, usually give the president power to change duties if other countries make specified changes in their duties. The third type of delegation of power occurs in the field of foreign affairs, where courts have approved broader delegations of power to the president than in domestic affairs because of the unique role he plays in this area.

Limits do exist on the ability of Congress to delegate legislative power to administrative agencies. Congress must define the subject to be regulated and must provide some standard to guide its agent's actions, even if that standard is no more exact than "just and reasonable." The delegation must be to public officials, not to private groups or individuals. Penal sanctions for violation of administrative orders can be provided only by Congress.

Strict judicial adherence to the nondelegation doctrine would have made virtually impossible congressional exercise of the powers conferred on the legislative branch by the Constitution. Judicial recognition of this fact contributed to the great growth of administrative agencies and independent regulatory commissions in the twentieth century.

BIBLIOGRAPHY

Barber, Sotorios A. The Constitution and the Delegation of Congressional Power. Chicago: University of Chicago Press, 1975.

Fitz Gerald, John L. Congress and the Separation of Powers. New York: Praeger, 1986.

Robert H.Birkby/a. g.

See alsoCabinet ; Carter v. Carter Coal Company ; Checks and Balances ; Civil Service ; Congress, United States ; Panama Refining Company v. Ryan ; Schechter Poultry Company v. United States ; Separation of Powers .