Constitutional Position of Admin Agencies 1: The Delegation of Legislative Power

2

- Expertise and political insulation
- Executive conducive to expert policymaking
- Congress can expand, contract or eliminate authority of agency by statute

- Undemocratic; lack of accountability (potential for arbitrary decisions)
- Separation of powers issue "Congress cannot delegate power that has been delegated"
- Enables legislators to avoid accountability (take credit or blame agency)
- Constitutionally problematic a balance of power, enumerated powers

o Crowded legislative agenda (if they tried to specify all details, they would never get anything done)
o Legislative process is slow and cumbersome
o Partisan politics may inhibit sensible, pragmatic application of best available information to problems at hand; bias

o Can influence by oversight that voters can monitor
o Voters can hold elected legislators accountable for decisions regarding scope and extent of delegation

o Electorate immunity- insulates them from pressure that may make it more likely for arbitrary, incompetent or abusive decision making that voters have no recourse

o Supposed to be difficult for fed gov't to make law and protect individual liberty from government overreaching and preserve state governments as principal lawmakers

the Constitution only gives legislature the power to make law

· "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative act is not a forbidden delegation of legislative power," Hampton

That courts can draw meaningful distinction between an agency's implementation of a congressional policy decision (may involve some discretion but is not a "legislative activity") and an agency's exercise of (delegated) legislative power

Gives rules how a body authorized to change rules is not forbidden delegation

An intelligible principle can be found even in facially broad language if the regulation can be interpreted in light of state background common law principles or specific industry standards

The test is whether or not there is a sufficient standard for an intelligible principle delegation to an Administrative Agency to promulgate its regulations. Balancing test either way. Courts have gone towards allowing any standard as sufficient and away from Schecter holding.

- Yes
- Takeaway: Modern trend is that courts will not enforce nondelegation doctrine unless there are literally no criteria to guide exercise of power; today, indirectly uphold nondelegation by interpreting statutes narrowly.

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