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