Can Congress Sub-Delegate Legislative Powers? [No. 86]
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Can Congress Sub-Delegate Legislative Powers? [No. 86]

January 11, 2020


The Constitution of the United States divides
up powers of government among different institutions. It vests all legislative powers herein granted
in Congress; it vests the executive power in the President and through the President
and subordinates within administrative agencies. And it vests the judicial power of the United
States in Federal Courts. Question is, what are the contours of that
power? If Congress gives certain authority, to the
President, to administrative agencies, to courts, for that matter, to private citizens
or foreign countries, is there a point at which Congress is giving those other entities
the legislative power that the Congress is vested with under The Constitution. That question, we lump under the heading of
the Non-Delegation Doctrine. Some of us think it should be called the Non-Sub-Delegation
Doctrine, because everything in the Constitution is a delegation of power from We The People
to different institutions. The question is whether the institution of
Congress is permitted to sub-delegate some portion of the power that its been given,
its legislative powers to some other body. So the real question under the Non-Delegation
or Non-Sub-Delegation Doctrine is, when would an exercise of power by an executive agency,
say an administrative agency, crossover from being executive power and become legislative
power instead? Suppose Congress created an agency. Let’s call it “The Goodness and Niceness
Commission”, and said to the agency, “We want you to promote goodness and niceness
in all matters involving interstate commerce. That’s your statutory mission. Go forth and promote goodness and niceness.” Now if the agency went ahead and promulgated
rules that it said we aimed at promoting goodness and niceness, would the agency be exercising
executive power because it would be carrying out the precise wishes of Congress? Or would that give the agency such a kind
and such a quality of discretion that it’s no longer really what the Constitution means
by Executive power? That’s what the Constitution means by legislative
power. And if you think that that’s what the Constitution
means by legislative power, then the question is, can Congress sub-delegate that away? I think the answer to that question is no. And the reason I think not is because I look
at the Constitution and the kind of document that it most looks like is a fiduciary instrument
where some people, in this case a fictitious person called “We The People”, vests a
certain power in others to manage some portion of that original person’s affairs. And among that entire family of instruments,
and they ranged from corporate charters to powers of attorney to guardianship instruments,
lots and lots of documents in that era. The one thing they all had in common was a
baseline presumption that when you vest those kinds of powers in an agent, in a fiduciary,
someone to manage your affairs, they’re supposed to do it themselves. That’s why you picked them and not somebody
else. And if you mean for them to sub-delegate that
authority, you will say so in the instrument.. It just doesn’t make a lot of sense that you
would construct an instrument that carefully identifies who’s going to be exercising these
powers, but if they really don’t wanna do it, they can give it to somebody else.

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  1. That’s all fine and dandy until you recognize bureaucratic rule makers in the EPA or DDTC are much more likely to enact appropriate rules that whatever rider amendment that Congress votes on as a part of an omnibus bill

  2. United Nations, League of Nations, World trade organization WTO, all represent some level of what you speak of ! walk carefully….peace To the people

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