Legislative Delegation and Two Conceptions of the Legislative Power

Authors

Robert C. Sarvis, New York University School of Law, Judicial law clerk for the Honorable E. Grady Jolly of the United States Court of Appeals for the Fifth Circuit

Abstract

[Excerpt] "The current federal government, with its burgeoning administrative agencies, does not embody what most Americans would recognize as the constitutional doctrine of separation of powers. This is, in part, due to the Congress’s frequent practice of delegating legislative powers to the executive branch, i.e., giving administrative agencies the power to promulgate rules regulating private behavior and having the force of law. Legislative delegation has been the subject of academic, legal, and political wrangling since the early congresses and clearly calls into question whether modern practice adheres to constitutional norms. This article discusses legislative delegation in terms of some core ideas that informed the writing and ratification of the Constitution, and then look at debates on legislative delegation from the early republic, the Progressive era, and modern times. Ultimately, this article argues that the no delegation doctrine – that legislative power cannot be delegated to the executive consistently with the Constitution – should be viewed as an important protector of constitutional values whose judicial enforcement is both desirable and practicable. In Part II, I discuss how the change in the conception of law and legislative power over the eighteenth century ought to influence how one appraises the propriety of legislative delegation. In Part III, I consider important debates over delegation occurring at critical moments in the history of delegation. Instead of focusing on the relatively familiar historical narrative of Supreme Court cases, I concentrate on the unchanging themes underlying arguments about delegation. In Part IV, I consider the main point of contention in modern discussions of delegation, namely judicial review, and evaluate assertions regarding its practicability and clarity."

Repository Citation

Robert C. Sarvis, Legislative Delegation and Two Conceptions of the Legislative Power, 4 Pierce L. Rev. 317 (2006), available at http://scholars.unh.edu/unh_lr/vol4/iss2/8