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Delegation and Contemporary Implications: The Erosion of Normative Limits

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Legislative Delegation

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Abstract

But before we proceed further with the inquiry at hand, into whether a positive rule of constitutional law can compensate for systemic changes in the structure of the liberal constitutional state, pause must be taken to retrace, up to this junction, the essential course of the book’s argument. Delegation, as we have seen, is a term whose immediate and indiscriminate use in observing and assessing constitutional phenomena is commonly misleading. This is due to the intertwined and irregularly overlapping multiplicity of assumptions informing the notion. Unless careful analytical observance is paid to the relevant presuppositions, proper understanding, and thus also the epistemologically fruitful use of the delegation concept in theoretical debates, can easily be preempted by hasty prejudgment or ideological prejudice.

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Notes

  1. 1.

    Not the content searches for its proper form, but rather the emptied form preserved after the disappearance of the initial legislative purview seeks (once again) an appropriate [constitutional] substance.

  2. 2.

    A.V. Dicey, Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century, 2d ed. (London: Macmillan, 1962), pp. 41-42, quoted after Robert Bork, The Antitrust Paradox: A Policy at War with Itself (New York: The Free Press, 1993 (1978)), pp. 421-422.

  3. 3.

    See generally, on the interdependencies between political theory and constitutional law, Christoph Möllers, Gewaltengliederung; Legitimation und Dogmatik im nationalen und internationalen Rechtsvergleich (Tübingen: Mohr Siebeck, 2005) and the abridged and revised version of the argument, Die drei Gewalten: Legitimation der Gewaltengliederung in Verfassungsstaat, Europäischer Integration und Internationalisierung (Weilerswist: Velbrück Wissenschaft, 2008).

  4. 4.

    Otto Brunner, Land und Herrschaft: Grundfragen der territorialen Verfassungsgeschichte Österreichs im Mittelalter (Wien, Wiesbaden: Rudolf M. Rohrer Verlag, 1959 (vierte, veränderte Auflage)), p. 145: “Ja die Ableitbarkeit, die Delegation, wenn auch selbst in der verstecken Form einer stillschweigend anerkannten Usurpation, wird geradezu zu einem Charakteristiken des öffentlichen Rechts im neuzeitlichen Sinne. Für die Erkenntnis der inneren Struktur dieses Staates ist die Einsicht in den Delegationszusammenhang wesentlich, in dem diese Ableitung sich vollzieht.”

  5. 5.

    The book’s supporting historical research is ostensibly restricted to medieval developments in the territories of present-day Austria and Bavaria. But see Howard Kaminsky, “The Noble Feud in the later Middle Ages,” 177 Past and Present 55 (2002), arguing that the essential argument of Land und Herrschaft can be easily extrapolated to the constitutional situations of medieval England and France.

  6. 6.

    Id., at p. 109.

  7. 7.

    Grimm 1988, 2005.

  8. 8.

    Immanuel Kant, “Beantwortung der Frage: Was ist Aufklärung?” in: BerlinischeMonatsschrift, Dezember-Heft 1784, S. 481-494.

  9. 9.

    Blackstone’s Commentaries 129.

  10. 10.

    Second Treatise, Par. 22.

  11. 11.

    Caleb Nelson, “Adjudication in the Political Branches,” 107 (3) Colum. L. Rev. 559 (April 2007).

  12. 12.

    Id., p. 561.

  13. 13.

    Congress may not delegate “powers which are strictly and exclusively legislative,” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825).

  14. 14.

    G. Edward White, The Constitution and the New Deal (Cambridge, Massachusetts and London, England: Harvard University Press, 2001).

  15. 15.

    Justice David Brewer, “The Moment of Coercion,” 1893 address before the New York State Bar Association, quoted in White, id., p. 206.

  16. 16.

    Robert H. Wiebe, The Search for Order, 1877-1920 (New York: Hill and Wang, 1967).

  17. 17.

    The Reagan bill, reported by the House Commerce Committee in 1878, provided for treble damages suits, filed in federal courts by the aggrieved shippers and, for each offense, 1000$ fines against the railroads, the amount to be divided between the state and the “informant.” See the study on the ICC Act adoption by Morris Fiorina, “Legislator Uncertainty, Legislative Control, and the Delegation of Legislative Power,” 2 J. L. Econ. & Org. 33 (1989).

  18. 18.

    Quoted in Wiebe 1967, pp. 295-296.

  19. 19.

    Forsthoff 1938.

  20. 20.

    The interdependence of economic conditions and constitutionalism finds ample support in eighteenth-century literature. For instance, Jefferson believed that republican government was only possible in America, where, due to the wide sparsely populated spaces and the abundance of arable lands, most men literally depended, for their survival, on the cultivation of their lands and characters. See Stanley Katz, “Thomas Jefferson and the Right to Property in Revolutionary America,” 19 The Journal of Law & Economics 467 (1976).

  21. 21.

    Forsthoff 1938, p. 39.

  22. 22.

    Given the time when the book was published, this conclusion may strike a cynical chord in the English language reader. Since, unlike his one-time mentor Schmitt, Forsthoff’s work is untranslated and relatively unknown outside of Germany, the note is justified that the 1938 argument was untainted by National-Socialist ideology. In the Bonn Republic, Forsthoff pursued (unsuccessfully and with an increasing degree of dissatisfaction) his attempt to reconceive administrative law through the conceptual lens of Daseinsvorsorge. He tried to give the concept the same doctrinal consistency and pivotal role that Otto Mayer had achieved for Eingriffsverwaltung. See Forsthoff’s classic monograph, Lehrbuch des Verwaltungsrechts, 10. Auflage (München: C.H. Beck, 1973). See generally, Florian Meinel, Der Jurist in der industriellen Gesellschaft. Ernst Forsthoff und seine Zeit (Berlin: Akademie Verlag, 2011).

  23. 23.

    G. Edward White 2001, p. 272. See generally the discussion of this general problematic in Chapter 9 “The Canonization and Demonization of Judges,” 269 ff. Also see by same, “The Lost Origins of American Judicial Review,” 78 Geo. Wash. L. Rev. 1145 (September, 2010).

  24. 24.

    United States v. Aluminum Co. of America, 148 F. 2d 416, 428 (2d Cir. 1945).

  25. 25.

    William H.Page, “The Gary Dinners and the Meaning of Concerted Action,” 62 SMU L. Rev. 597 (2009).

  26. 26.

    Bork 1978.

  27. 27.

    “Antitrust should have no concern with any firm size or industry structure created by internal growth or by a merger more than ten years old.” Id., p. 406.

  28. 28.

    Id., at p. 54.

  29. 29.

    Ibid., p. 427.

  30. 30.

    Ibid., p. 425.

  31. 31.

    Ernst Forsthoff, Der Staat der Industriegesellschaft. Dargestellt am Beispiel der Bundesrepublik Deutschland (München: C.H. Beck, 1971), p. 160 “Die Folge ist die Verunsicherung des Einzelnen. Er sieht sich in einer Umwelt, die von Großstrukturen besetzt ist und beherrscht wird. Diese Großstrukturen, in denen sich die Industriegesellschaft darstellt, sind seinem Verständnis unzugänglich, da sein Lebens- und Erfahrungsbereich nicht an sie heranreicht.”

  32. 32.

    United States v. Carolene Products Co., 304 U.S. 144 (1938). See generally Edward White 2001, passim.

  33. 33.

    Lon Fuller, “The Forms and Limits of Adjudication,” 92 Harv. L. Rev. 353, at p. 367 (December, 1978) [emphasis in original].

  34. 34.

    Id., at p. 369.

  35. 35.

    Mass. 216, 29 N.E. 517, 517-518 (1892), per Holmes, J.

  36. 36.

    Mass. 510, 511, 39 N.E. 113, 113 (1895), aff'd, 167 U.S. 43 (1897).

  37. 37.

    According to the current doctrine, fundamental rights have effect in the case “special legal relationships” (Sonderrechtsverhältnisse), although special legal restrictions may be justified in the context. See, for instance, the 2003 “Headscarf Decision” of the Federal Constitutional Court, BVerfGE 108, 282 (Kopftuch-Urteil).

  38. 38.

    Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States (St. Louis: The F. H. Thomas Law Book Co., 1886), at p. 190.

  39. 39.

    Id., at p. 192.

  40. 40.

    White 2001, p. 132. ff.

  41. 41.

    Grimm 1970.

  42. 42.

    Luhmann 1990, at p. 187.

  43. 43.

    Between 1789 to 2004, out of 2250 presidential vetoes (regular and pocket), only 106 had been overridden. US Congressional Research Service. Presidential Vetoes, 1789-present: A Summary Overview (CRS Report 98-148, April 7, 2004), by Mitchell A. Sollenberger. Text in: Congressional Research Service Reports, http://democrats.rules.house.gov/archives/crs_reports.htm (accessed August 28, 2011).

  44. 44.

    Mistretta v. United States, 488 U.S. 361 (1989), upheld against a nondelegation challenge the Sentencing Reform Act of 1984, authorizing the United States Sentencing Commission, an independent agency ‘located in the Judicial Branch,’ to create uniform sentencing guidelines for federal offenses.

  45. 45.

    This tendency can be aggravated but is not necessarily determined by the degree of legislative and judicial control over Congressional delegations. See generally Farina 1989 and Elena Kagan, “Presidential Administration,” 114 Harv. L. Rev. 2245 (2001).

  46. 46.

    See Frank Vibert, The Rise of the Unelected: Democracy and the New Separation of Powers (Cambridge: Cambridge UP, 2007). Linz, Juan J. “Democracy’s Time Constraints,” 19 (1) International Political Science Review 19 (1998).

  47. 47.

    Monaghan 1983, at p. 6.

  48. 48.

    But cf. Sanford N. Caust-Ellenbogen, “Blank Checks: Restoring the Balance of Powers in the Post-Chevron Era,” 32 B.C.L. Rev. 757, at pp. 813-814 (1990-1991) (the President exercises no control over the independent agencies and relatively little over the executive ones; the agencies are in effect either “laws unto themselves” or captured by the regulated interests) and Jerry L. Mashaw, “Structuring a ‘Dense Complexity’: Accountability and the Project of Administrative Law,” Issues in Legal Scholarship, The Reformation of American Administrative Law (2005): Article 4. http://www.bepress.com/ils/iss6/art4 (arguing that the post-“interest balancing” attempts, notably represented by Kagan 2001, to provide a new comprehensive explanatory model for administrative law practices overstates their case, at p. 4: “That Ronald Reagan campaigned on regulatory relief for the automobile industry was as legally impotent in State Farm as Bill Clinton’s Rose Garden ‘authorization’ of the FDA’s regulation of tobacco in Brown and Williamson. ‘Presidentialism’ may have more descriptive than normative significance.” (last emphasis supplied, citations omitted)).

  49. 49.

    U.S. 919 (1983). Yet, the opinions on both the practical import of the legislative veto and on the effect of the decision as such are by and large divided. Corwin, in his 1957 study on the Presidency, considered the legislative veto as the main if not the only Congressional delegation-related control mechanism on the Executive. So did, with more reservation, Sotirios, in his delegation study. But cf Tribe, § 2-6, pp. 141-152, arguing that the effects of Chadha were overall beneficial, raising the quality of the legislative process, enhancing responsibility, heightening visibility.

  50. 50.

    U.S. 714 (1986).

  51. 51.

    U.S. 252 (1991).

  52. 52.

    U.S. 417 (1998).

  53. 53.

    See John F. Manning, “Textualism as a Nondelegation Doctrine,” 97 Colum. L. Rev. 673 (1997), arguing that procedural guarantees function as “structurally enforced nondelegation doctrine” and substitutes for “executory delegations”: “In contrast with legislative self-delegation, the transfer of some policymaking discretion to agencies and courts is understood as a matter of constitutional necessity, and as less amenable to control through judicially administrable standards.” (at p. 725).

  54. 54.

    Strauss 1989.

  55. 55.

    Woodrow Wilson, Congressional Government: A Study in American Politics (Cleveland, OH: Meridian Books 1956) (1885), p. 69.

  56. 56.

    Id., at p. 82.

  57. 57.

    See Fiorina 1986, at p. 45 “[M]any substantive committees are overpopulated by ‘interested’ congressmen.” Fiorina argues more generally that delegation is a function of a number of interacting factors i. the breadth of the language and therefore discretion; ii. the identity of the delegate (courts or administration); iii. the post-adoption expectations of strategically located committee members and chairpersons to control implementation. Strategic behavior would often be according to the author more explanatory of delegation than the complexity of governmental processes. Also see, regarding the impact of congressional structural biases on the control of statutorily conferred administrative discretion, J.R. DeShazo and Jody Freeman, “The Congressional Competition to Control Delegated Power,” 81 Tex. L. Rev. 1443 (2002–2003).

  58. 58.

    Arthur Macmahon’s 1943 cautionary warning still carries therefore the same purchasing power: “The hazard is that a body like Congress, when it gets into detail, ceases to be itself; it acts through a fraction which may be a faction.” Cited by Strauss 1989 at p. 434. See generally the study by David Epstein and Sharyn O’Halloran, Delegating Power- A Transaction Cost Politics Approach to Policy Making Under Separate Powers (Cambridge: Cambridge University Press, c1999), arguing that the imposition of across the board constitutional restrictions on the practice would produce perverse effects, shifting power from the floor to the committees and thus to powerful committee and subcommittee leaders and ultimately also to interest groups; the reasoning is summated in this paragraph: “[D]elegation is not only a convenient means to allocate work across the branches; it is also a necessary counterbalance to the concentration of power in the hands of the committees. In an era where public policy becomes ever more complex, the only way for Congress to make all important policy decisions internally would be to concentrate significant amounts of authority in the hands of powerful committee and subcommittee leaders, once again surrendering policy to a narrow subset of its members. From the standpoint of floor voters, this is little better than complete abdication to executive branch agencies. As it now works, the system of delegation allows legislators to play committees off against agencies, dividing the labor across the branches, so that no one set of actors dominates. Given this perspective, limits on delegation would not only be unnecessary, they would threaten the very individual liberties they purport to protect.” (at pp. 237–238).

  59. 59.

    But cf. Sandra B. Zellmer, “The Devil, the Details, and the Dawn of the 21st Century Administrative State: Beyond the New Deal,” 32 Ariz. St. L. J. 941 (2000) (arguing that nondelegation is inextricably linked to the laissez faire judicial propensities of the early New Deal).

  60. 60.

    Fiorina 1986 p. 35 FN 3 (Wallace in 1964, Wallace and Nixon in 1968, Carter in 1976, and Carter and Reagan in 1980).

  61. 61.

    See supra, the general discussion in the section on conceptual associations and constitutional constraints at p. 80f.

  62. 62.

    David Schoenbrod, “Politics and the Principle that Elected Legislators Should Make the Laws,” 26 Harv. J. L. & Pub. Pol’y 239 (2003).

  63. 63.

    Martin Redish, The Constitution as Political Structure (NY: Oxford University Press, 1995), at 16, 137, quoted after Patrick M. Gary, “Accommodating the Administrative State: The Interrelationship between the Nondelegation and Chevron Doctrines,” 38 Ariz. St. L. J. 921 (2006), at p. 939.

  64. 64.

    Jerry L. Mashaw, “Prodelegation: Why Administrators Should Make Political Decisions,” 1 J. L. Econ. & Org. 81 (1985), at p. 87: “The dynamics of accountability apparently involve voters willing to vote upon the basis of their representative’s record in the legislature. Assuming that our current representatives in the legislature vote for laws that contain vague delegations of authority, we are presumably holding them accountable for that at the polls. How is that we are not being represented?”.

  65. 65.

    On first- and second-order decisions, see Cass R. Sunstein and Edna Ullman-Margalit, “Second-Order Decisions,” 110 (1) Ethics 5 (Oct. 1999).

  66. 66.

    Dan Kahan, “Democracy Schmemocracy,” 20 Cardozo L. Rev. 795 (1998-1999).

  67. 67.

    Id., at p. 803: “Indeed, my guess is that no democratically organized community would ever enact a delegation scheme that couldn’t be seen as making its government more democratic under some plausible conception of that term.”

  68. 68.

    ”Leistungserwartungen sind von Geltungsvorstellungen geprägt.” P. Graf Kielmannsegg, “Legitimität als analytische Kategorie“, in Politische Vierteljahresschrift 12 (1971), 367 (393), quoted after Möllers 2008, at p. 14.

  69. 69.

    Lawson 2002, at p. 332.

  70. 70.

    See David Schoenbrod, “Goals Statutes or Rules Statutes: The Case of the Clean Air Act,” 30 UCLA L. Rev. 740 (1982-1983) and Schoenbrod 1993.

  71. 71.

    Industrial Union Department, AFL-CIO v. American Petroleum Institute 448 U.S. 607 (1979). See also “Cotton Dust”, American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981). In both cases, the majority considered that the locution “to the extent feasible” supplied a limiting standard and saved the statute from a nondelegation challenge, whereas Rehnquist’s dissents countered that precisely the insertion of that phrase had “rendered what had been a clear, if somewhat unrealistic, statute into one so vague and precatory as to be an unconstitutional delegation of legislative authority to the Executive Branch” (Rehnquist, J, dissenting, 452 U.S. 490, at p. 545).

  72. 72.

    Section 6 (b) (5) of the Occupational Safety and Health Act of 1970, 84 Stat. 1590.

  73. 73.

    U.S. 607, at 646 (1979).

  74. 74.

    U.S. 607, at 685-686: “As formulated and enforced by this Court, the nondelegation doctrine serves three important functions. First, and most abstractly, it ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will…Second, the doctrine guarantees that, to the extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an ‘intelligible principle’ to guide the exercise of the delegated discretion…Third, and derivative of the second, the doctrine ensure that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards.”

  75. 75.

    SeeTouby v. United States, 500 U.S. 160 (1991), at pp. 165-166: “Petitioners suggest…that something more than an ‘intelligible principle’ is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions. They contend that regulations of this sort pose a heightened risk to individual liberty and that Congress must therefore provide more specific guidance. Our cases are not entirely clear as to whether more specific guidance is in fact required.” See comments and discussion in Mashaw et al., at pp. 77–78.

  76. 76.

    U.S., at 161.

  77. 77.

    U.S. 748 (1996).

  78. 78.

    Id., at pp. 769-771. See “Steel Seizure”, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), holding that independent constitutional authority does not extend to restriction on civilian property (seizure of steel mills by Executive Order), in times of domestic peace, without express congressional authorization. Compare with the effects of congressional “silence” in foreign affairs, especially executive control of international claims settlement, Dames & Moore v. Regan 453 U.S. 654 (1981) and the more recent American Insurance Association v. Garamendi, Insurance Commissioner, State of California, 539 U.S. 396 (2003), which held that the president can settle claims of American nationals with foreign governments (and foreign corporations), through executive agreements (which do not need to be ratified by the Senate or approved by Congress) and can preempt state legislation. SeeFirst National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972), emphasizing “the lead role of the Executive in foreign policy.” See Alfred C. Aman, Administrative law in a Global Era (Ithaca, N.Y.: Cornell University Press, 1992), for an exposition of and an argument regarding the way in which the ‘Global Presidency’ of more recent times influenced delegations and more generally imbalanced inter-branch relations.

  79. 79.

    Am. Trucking Ass’ns v. EPA, 175 F3d 1027 (D.C. Cir.), modified in part and reh’g en banc denied, 195 F.3d 4 (D.C. Cir. 1999), and rev’d in part sub nom. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).

  80. 80.

    Clean Air Act, § 109 (b) (1), (d), 42 U.S.C. § 7409 (b), (d) (1994).

  81. 81.

    National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. at 38,868.

  82. 82.

    Lisa Schultz Bressman, “Disciplining Delegation after Whitman v. American Trucking Ass’ns,” 87 Cornell L. Rev. 452 (2001-2002), at p. 452.

  83. 83.

    Whitman v. Am. Trucking Ass’ns (quoting Mistretta v. United States, 448 U.S. 361, 417 (1989)), 531 U.S. 457, at 475 (2001).

  84. 84.

    See generally the study by (now Justice) Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (Cambridge, Mass.: Harvard University Press, 1993), arguing in essence for a primarily political solution (through a committee under the supervision of the Executive Office of the President) to such problems.

  85. 85.

    See Diver 1983 and Cass R. Sunstein, “Problems with Rules,” 86 Cal. L. Rev. 953 (1995).

  86. 86.

    Jaffe 1947, at p. 369.

  87. 87.

    Frank Easterbrook, “The Role of Original Intent in Statutory Construction,” 11 Harv. J. L. & Pub. Pol’y 59, at p. 62 (1988).

  88. 88.

    See Richard Pierce, “The Role of Constitutional and Political Theory in Administrative Law,” 64 Tex. L. Rev. 469 (1985-1986), arguing that nondelegation tests —“based on some combination of the relative importance of the policy decision and the relative necessity of the legislature’s failure to make that decision” (p. 505)—would endow judges with a “thinly disguised putatively constitutionally based policy dictatorship” (p. 503). According to Piece, the test would pose already insurmountable problems at step i, since: “there is no objective test for distinguishing ‘fundamental’ policy issue from other policy issues. The characterization of a policy issue as fundamental inevitably is influenced by each judge’s values and ideology. Something that is ‘fundamental’ to a political conservative, for instance, may not be ‘fundamental’ to a political liberal.” (at p. 502).

  89. 89.

    Mistretta, 448 U.S. at 373 n 7.

  90. 90.

    Cass R. Sunstein, “Nondelegation Principles,” in Richard W. Bauman and Tsvi Kahana (Eds.), The Least Examined Branch-The Role of Legislatures in the Constitutional State (New York: Cambridge University Press, 2006), 139-154, at p. 140.

  91. 91.

    Id., at p. 143.

  92. 92.

    Ibid., at p. 152.

  93. 93.

    Also see Sunstein “Law and Administration after Chevron,” 90 Colum. L. Rev. 2071(1990), arguing that ‘nondelegation canons’ are not rendered inapplicable by the adoption of the ‘rule of deference’ in Chevron with respect to an agency’s interpretations of its enabling act, since they relate to constitutional issues distinct from the principle of agency deference, demanding contrariwise “explicit congressional authorization before certain results may be reached.” (at p. 2113) See also Tribe 2000, at pp. 1010-1011.

  94. 94.

    U.S. 116 (1958).

  95. 95.

    Id., at p. 129: “Since we start with an exercise by an American citizen of an activity included in constitutional protection, we will not readily infer that Congress gave the Secretary of State unbridled discretion to grant or withhold it.… And, as we have seen, the right of exit is a personal right included within the word ‘liberty’ as used in the Fifth Amendment. If that ‘liberty’ is to be regulated, it must be pursuant to the lawmaking functions of the Congress…. And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests. Thus we do not reach the question of constitutionality. We only conclude that s 1185 and s 211a do not delegate to the Secretary the kind of authority exercised here.” See alsoGreene v. McElroy 360 U.S. 474 (1959).

  96. 96.

    U.S. 88 (1976).

  97. 97.

    Id., at p. 105: “We may assume with the petitioners that if the Congress or the President had expressly imposed the citizenship requirement, it would be justified by the national interest in providing an incentive for aliens to become naturalized, or possibly even as providing the President with an expendable token for treaty negotiating purposes; but we are not willing to presume that the Chairman of the Civil Services Commission, or any of the other original defendants, was deliberately fostering an interest so far removed from his normal responsibilities.”

  98. 98.

    National Cable Television Ass’n, Inc., v. U.S. 415 U.S. 336 (1974) The Federal Communications Commission could under its organic legislation impose a fee on cable television companies (CATV’s) for services equaling the value of its services to the recipients but was not authorized to tax; taxation cannot be presumed to have been delegated by Congress: “Whether the present Act meets the requirement of Schechter and Hampton is a question we do not reach. But the hurdles revealed in those decisions lead us to read the Act narrowly to avoid constitutional problems.” (at 342). See also Tribe, at p. 987, note 30, observing that: “National Cable Television was particularly notable because the policy of clear statement was triggered not by some threatened infringement of a constitutionally protected substantive right or liberty –except perhaps a freedom from ‘taxation without representation’- but by the delegation doctrine itself.” But cf. Skinner v. Mid-America Pipeline Co. 490 U.S. 212 (1989), upholding delegation of the taxing power.

  99. 99.

    See Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988).

  100. 100.

    EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991).

  101. 101.

    See, for instance, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), where a federal regulation was held not to preempt overlapping state law, due to the fact that the content of the federal regulation had been in fact decided by a group of local avocado growers rather than by “impartial experts in Washington or even in Florida.” (cited and commented in Tribe, supra, at pp. 991–993, esp. note 49).

  102. 102.

    David M. Lawrence, “Private Exercise of Governmental Power,” 61 Ind. L. J. 647 (1985-1986), Gillian E. Metzger, “Privatization as Delegation,” 103 Colum. L. Rev. 1367 (Winter, 2003), Ira P. Robbins, “The Impact of the Delegation Doctrine on Prison Privatization,” 35 UCLA L. Rev. 911 (1988), and Jody Freeman, “The Private Role in Public Governance,” 75 (3) N.Y.U. L. Rev. 543 (2000).

  103. 103.

    The argument here is not similar to that made by John Manning, related to unadministrability due to the interpretive burdens. See John F. Manning, “Lessons from a Nondelegation Canon,” 83 Notre Dame L. Rev. 1541 (2007-2008), at p. 1563, n. 63, making the subtle hermeneutical claim that “holding one’s method of interpretation constant, it entails arbitrary line-drawing to identify the level of background ambiguity at which statutory outcomes cross the line from congressional choice to statutory discretion.” My criticism of nondelegation canons is both simpler and more foundational. It relates, namely, to their lack of normative cohesiveness/coherence: nondelegation canons offer disparate and untractable prudential answers to a structural-normative question. See, for a parallel criticism in analogous context (of Sunstein’s theory of interpretation canons), Richard Stewart (Book Review of Cass R. Sunstein, After the Rights Revolution, Cambridge, Mass., Harvard University Press, 1990), “Regulatory Jurisprudence: Canons Redux?,” 79 Cal. L. Rev. 807 (1991).

  104. 104.

    “Of the adjective law, the only defensible object, or say end in view, is the maximization of the execution and effect given to the substantive branch of the law.” J. Bentham, The Principles of Judicial Procedure, in 2 Works of Jeremy Bentham 1, 6 (J. Bowring ed. 1838-1843), quoted after Gerald J. Postema, “The Principle of Utility and the Law of Procedure: Bentham’s Theory of Adjudication,” 11 Ga. L. Rev. 1393, at p. 1396 (1976-1977).

  105. 105.

    Möllers 2005, 2008.

  106. 106.

    Möllers 2008, p. 90.

  107. 107.

    Id., at p. 130.

  108. 108.

    Ibid., at p. 127.

  109. 109.

    Mashaw 1997, at p. 1, quotes an apposite jibe that Picasso is rumored to have thrown at common friends, in response to their uncomplimentary remarks regarding the accuracy of his Gertrude Stein portrait: “[N]ever mind, in the end, she will manage to look just like it.”

  110. 110.

    Charles A. Reich’s article, “The New Property,” 73 Yale L. J. 733 (1963-1964), was the theoretical forerunner of the subsequent judicial developments, arguing that, to the extent that government — both federal and state — had become a major employer and dispenser of largesse, the traditional right-privilege distinction and the constitutional characterization of a right in common law, had become untenable. Government largesse needed to be seen as a new property to which Fifth/Fourteenth Amendments constitutional procedural protections would attach.

  111. 111.

    U.S. 254 (1970).

  112. 112.

    Matthews v. Eldridge, 424 U.S. 319, at 333 (1976): Goldberg required a “a hearing closely approximating a judicial trial.”

  113. 113.

    This is not to deny the fact that, in a limited government, the presumption is necessarily negative, that is, against government intervention. This presumption reflects itself in practices and does indeed render current practices coherent. Cf. Nelson 2007, at p. 564: “Indeed, to the extent that the Supreme Court’s current approach to these issues has any structure at all, that structure comes from the traditional framework [i.e., the difference between ‘private’ and ‘public’ rights]. Nonetheless, the acknowledgement of practical necessity does not necessarily lead to a normatively satisfactory justification. But cf. Williams 1983 defending “the Constitution’s underlying vision of the proper relation between the state and the individual” (p. 4) by a revamped version of the “liberty and property” boundary as “degree of preclusion of private alternatives.” Enough has been said so far to indicate that “degree of preclusion,” like all matters of degree, presents a very different justificatory/normative configuration than “natural rights.”

  114. 114.

    “It somewhat strains credulity to say that the government's promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment.” Goldberg v. Kelly, 397 U.S. 254 (1970), at 275, per Black, J., dissenting.

  115. 115.

    Horwitz 1992, at p. 246, arguing that the Goldberg decision “prominently relied” on Reich’s article. Also see, Stephen F. Williams, “Liberty and Property: The Problem of Government Benefits,” 12 J. Leg. Stud. 3 (1983).

  116. 116.

    Id., p. 245.

  117. 117.

    Consider the following definition by Jack Beerman, “The Reach of Administrative law in the United States,” in M. Taggart (ed.) 1997, at p. 184: “ In all cases raising a due process claim that the government has not employed fair procedures, there is a threshold requirement that the plaintiff establish that he or she has a protected interest, usually liberty or property, at stake. The existence of the protected interest, except when constitutionally defined liberty is involved, is determined by looking to an external source of law, such as the statute governing the benefits programme or regulating the government employment. The existence of a protected interest in such cases involves the purely positive law question of whether governing law creates an entitlement to the benefit or employment. If the benefit is purely a gratuity or if the employment is governed by the at-will rule under which an employee may be discharged without notice, then there is no protected interest and no procedural rights attach.” SeeBoard of Regents v. Roth, 468 U.S. 564 (1972).

  118. 118.

    U.S. 319 (1976).

  119. 119.

    Id., at 335 (citation omitted).

  120. 120.

    Jerry L. Mashaw, Due Process in the Administrative State (New Haven, CT: Yale University Press, 1985), at p. 102.

  121. 121.

    T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” 96 Yale L.J. 943 (1987). For a trenchant and sophisticated critique of the “instrumentalist” deficiencies intrinsic in Eldrige-like due process balancing, see Mashaw 1985, Chapter 3, “The Model of Competence,” pp. 102-157.

  122. 122.

    Horwitz 1992, at p. 238.

  123. 123.

    Rabin 1986, at p. 1265: “The APA is, in essence, a highly conventional lawyer’s view of how to tame potentially unruly administrators. It divides the universe of administrative action in two general decisionmaking categories, rulemaking and adjudication.”

  124. 124.

    Sections 554, 556 and 557 specify the procedural requirements to be followed in adjudicatory actions and require a functionally related separation between the prosecutorial and adjudicatory officers (now Administrative Law Judges) of an agency.

  125. 125.

    American administrative law emphasizes participation, differing from the standard European patterns, which stress judicial protection of rights (or/and judicial policing of legality as such). See, Susan Rose-Ackerman, “American Administrative Law under Siege: Is Germany a Model?,” 107 Harv. L. Rev. 1279 (1993-1994), arguing that German (and more generally European) administrative law could not be a model for the US, due to its de-emphasis on participation. Proposals have also been made to the contrary effect, namely, arguing for an importation of the American participatory processes, most notably notice-and-comment rulemaking, into European (both domestic or E.U.) administrative law. Whether and how that could be achieved, given the distinct nature of the legislative process and democratic will formation in Europe, is a more problematic matter. See Theodora Ziamou, Rulemaking, Participation and the Limits of Public Law in the USA and Europe (Aldershot, England: Ashgate, 2001) and Francesca Bignami, “Accountability and Interest Group Participation in Comitology: Lessons from American Rulemaking,” European University Institute Working Paper, Robert Schuman Centre No. 99/3 (1999).

  126. 126.

    The distinction between actions that are judicial in nature and to which, therefore, due process protections attach and those of a legislative character, exempted from the constitutional requirement of due process, was drawn by the Supreme Court in two landmark cases. In Londoner v. City and County of Denver 210 U.S. 373 (1908), the Supreme Court voided a tax assessment regarding a street paving in the City of Denver, to be levied on the individual landowners abutting the street, on the ground that the individuals had been deprived of their constitutional due process rights (the assessment had been made behind closed doors and the individuals had not been heard prior to the decision but only been granted the possibility to present objections in writing): “[W]here the legislature of a state, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that, at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place.” (at 286) In Bi-Metallic Investment Co. v. State Board of Equalization 239 U.S. 441 (1915), the Court held, conversely, that when a decision concerns a large number of equally affected individuals, due process rights do not attach (in that case, the Colorado Board of Equalization and the Colorado Tax Commission ordered the valuation of all taxable property in the City of Denver to be increased by forty percent): “Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard….There must be a limit to individual argument in such matters if government is to go on.” (at 445, per Holmes, J.)

  127. 127.

    For a concise and illuminating rendition of the APA ‘compromise,’ see Alfred C. Aman, “Administrative Law for a New Century,” in Taggart (ed.) 1997, at p. 93: “Prior to the Administrative Procedure Act (APA), there was no generally accepted alternative procedural model to the adversary model provided by the courts, even when policy issues were predominant. Procedures, of course, have substantive effects, as well. The more adversarial the procedures, the fairer the process might appear, particularly to those who objected to the substance of the regulation to be implemented in the first place, but the more difficult and costly it was to carry out the governmental programmes involved….It was, thus, a major step simply to be able, constitutionally speaking, to move adjudicatory proceedings from the courts to administrative agencies, to which the Supreme Court gave its constitutional blessing in Crowell v. Benson in 1932.”

  128. 128.

    Wong Yang Sung v. McGrath, 339 U.S. 33, at p. 40 (1950).

  129. 129.

    Id., at pp. 40–41.

  130. 130.

    Louis Jaffe, “Judicial Review: ‘Substantial Evidence on the Whole Record,’” 64 Harv. L. Rev. 1233, at p. 1236 (1951). Cf., similar, Martin Shapiro, “Administrative Discretion: The Next Stage,” 92 Yale L. J. 1487 (1982-1983), at p. 1490: “Standards for judicial review are notoriously vague. The degree to which a court will substitute its judgment for an agency’s is neither determined nor expressed by the formula it announces.” See also, Rabin 1986, at p.1266: “[T]he Act spoke in the broad terms of a charter-‘substantial evidence,’ ‘arbitrary and capricious,’ ‘statement of basis and purpose,’ and so forth-employing language sufficiently vague to allow the greatest leeway in the scope of administrative discretion to fashion regulatory policy in a particularized context.”

  131. 131.

    The scope of review in general is specified in Sec. 706 (2) Scope of Review. The first two and the last standard are derived from this section, (A), (E), and (F): “The reviewing court shall…hold unlawful and set aside agency action, findings, and conclusions, found to be:

    1. (A)

      arbitrary, capricious, and abuse of discretion, or otherwise not in accordance to the law;

    2. (B)

      contrary to constitutional right, power, privilege, or immunity;

    3. (C)

      in excess of statutory jurisdiction, authority, limitations, or short of statutory right;

    4. (D)

      without observance of procedure required by law;

    5. (E)

      unsupported by substantial evidence in a case subject to section 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

    unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.”

  132. 132.

    Paul R. Verkuil, “An Outcomes Analysis of Scope of Review Standards,” 44 Wm. & Mary L. Rev. 679 (2002-2003), at p. 682: “Think of the word ‘scope’ in ‘scope of review’ as a contraction of ‘telescope.’ Like a telescope, scope of review offers either a narrow aperture to limit the breadth of judicial scrutiny, thereby increasing the area of agency discretion, or a wider lens to expand judicial oversight, thereby decreasing agency discretion.”

  133. 133.

    Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, at p. 415 (1971).

  134. 134.

    Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983).

  135. 135.

    Verkuil 2002-2003, on the basis of a statistical analysis of field-specific scope of review outcomes, notices that, although, for instance, Social Security Administration are reviewed under a substantial evidence standard, the actual, much more stringent, remand rate (50%) would more accurately correspond to de novo review, whereas Freedom of Information Act reviews, nominally de novo, are reversed at the diminutive rate of 10%, corresponding in fact to extremely deferential, arbitrary and capricious review.

  136. 136.

    U.S. 111 (1944).

  137. 137.

    See also Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297 (1943).

  138. 138.

    See general discussion at p. 242 ff in Horwitz 1992. (“But above all, disillusionment with the ‘best and brightest,’ those arrogant technocrats who had confidently predicted a quick victory in Vietnam, produced a deep reaction to claims of expertise.”, at p. 242). See generally, on administrative pathologies undermining the “expertise” model, Bernstein 1955.

  139. 139.

    Stewart 1975, at p. 1670: “Increasingly, the function of administrative law is not the protection of private autonomy but the provision of a surrogate political process to ensure the fair representation of a wide range of affected interests in the process of administrative decision. Whether this is a coherent or workable aim is an open issue. But there is no denying the transformation.”

  140. 140.

    Id., at pp. 1759-1760.

  141. 141.

    Ibid., at p. 1683.

  142. 142.

    E.g., Ziamou 2001 (relying on Stewart’s account to defend the proposal to adopt US-minted pluralist rulemaking models in Europe). But cf. Mashaw 2005, at p. 2 “There is no escaping the overall impression left by Reformation. Understood as a project of making administrators accountable to the legislative will, administrative law was failing. The old transmission belt model was in tatters; and, whether others could see it or not, Stewart was clearly predicting that its successor, interest representation, would suffer a similar fate.”

  143. 143.

    See the “Lisbon Decision” of the German Constitutional Court, for a thoughtful (and skeptical) judicial gloss on the possibilities of substituting “representative associations” and “civil society” participation (Art. 11 Lisbon TEU) to compensate for representative democracy deficits, BVerfG, 2 BvE 2/08 vom 30.6.2009, at para. 290 ff (English translation, at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html).

  144. 144.

    Shapiro 1988.

  145. 145.

    Cf. Mashaw 2005, arguing that the major flaw in Stewart’s essay was “that article’s tendency to take the transmission belt metaphor too seriously –to assume that administrative accountability and administrative legitimacy must flow from or be oriented towards a single source of political authority rooted in electoral processes” (at p. 37). According to Mashaw, accountability is a complex, multifaceted notion. Its conceptual use invites questioning assumptions, whereas its practical instantiations invite complex institutional trade-offs. Mashaw profers therefore, as a counterpart to Stewart’s complexity, the complexity of “administrative law as institutional design,” in recognition of the fact that “any institutional form is likely to respond to multiple sources of influence and constraint, and thus to participate simultaneously in multiple accountability regimes” (at p. 38). This may be so but Professor Mashaw’s answer is the open-ended, managerial challenge of a demiurge, of constitution-making even (and one may suspect that he would only relish its complete joys in a world of like-minded demiurges, otherwise the multiplicity of free-floating assumptions, both institution-making and theoretical discussion-wise may veer out of any manageable control). Stewart’s question is situated in a completely different paradigm, namely within the conceptual and practical constraints of normative constitutionalism.

  146. 146.

    Analogous steps back (in the procedural field) are the developments in standing law after Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), holding that pure (mere) “regulatory injury” is not a sufficient standing predicate and (in the field of administrative law proper) Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), putting an end to the “hybrid rulemaking” innovations of lower courts.

  147. 147.

    U.S. 837 (1984).

  148. 148.

    Id., at 857-858.

  149. 149.

    Elizabeth Garrett, 101 Mich. L. Rev. 2637 (2002-2003) (“One of the most significant administrative law cases, Chevron v. Natural Resources Defense Council, Inc. is routinely referred to as the “counter-Marbury.” (at p. 2637). Chevron was, ironically, roughly contemporaneous with the “Bumpers Amendment” to the APA which came very close to be adopted in Congress (it passed though the Senate unanimously). The Bumpers Amendment would have required courts to do precisely the opposite to what Chevron directs them, i.e., to decide “independently” (de novo) “all questions of law.”

  150. 150.

    Chevron, at 842-843: “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress” (footnote omitted).

  151. 151.

    “If, however, the court determines that Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” At 843 (footnotes omitted).

  152. 152.

    See thus Richard Pierce, “Reconciling Chevron and Stare Decisis,” 85 Geo. L. J. 2225 (1996-1997), for whom Chevron is “one of the most important constitutional law decisions in history, even though the opinion does not cite any provision of the Constitution” (at p. 2227). According to Pierce, Chevron provides a better method of enforcing the nondelegation doctrine, by replacing the failed “use of command and control regulation of Congress” (i.e., direct enforcement of the doctrine, by constitutional invalidation of “delegating” statutes) with a “reconstitutive strategy” that changes the institutional incentives (Congress knows now that the administration of vague statutes will be controlled by the President and this provides the legislature with a strong incentive to legislate with specificity) (at pp. 2230-2232).

  153. 153.

    See Thomas W. Merrill and Kristin Hickman, “Chevron’s Domain,” 89 Geo. L. J. 833 (2000-2001), for an elaboration (and a review of the literature on the diverse positions) on whether the status of Chevron is that of i. a constitutional law doctrine, deriving from the separation of powers; ii. a statutory-level doctrine deriving from Congress in the form of a presumption about congressional intent; iii. a common-law-level, judicial norm (canon) of statutory construction.

  154. 154.

    Tribe 2000 (Vol. I, Third Ed.), at p. 1002. The literature on Chevron is enormous; citations of general positions are provided here for general exemplificatory purposes only, insofar as they serve the needs of this book’s argument.

  155. 155.

    Patrick M. Garry, “Accommodating the Administrative State: The Interrelationship Between the Chevron and Nondelegation Doctrines,” 38 Ariz. St. L. J. 921, at p. 959 (2006).

  156. 156.

    See Pierce (1985-1986), according to whom Chevron is a positive, fourth-way alternative to the other (flawed) possibilities of disciplining the policy-making powers of agencies under meaningless statutory standards. Unlike the three other alternatives (the meanwhile invalidated legislative veto; de novo review; revival of nondelegation), deference is both judicially legitimate and politically commendable, shifting policy-making power to the President. Cf. partly similar Douglas W. Kmiec, “Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine,” 2 Admin. L. J. 269 (1988), at p. 290: “Administrative discretion even under the practically attenuated, but constitutionally recognized, supervision of an elected president, seems more in keeping with our constitutional structure than judicial legislation. Lawmaking at the hands of an unelected judiciary raises more questions than it answers against a backdrop of separated powers.” Cf. also Kenneth W. Starr, “Judicial Review in the Post-Chevron Era,” 3 Yale J. on Reg. 283 (1985-1986), at p. 312: “Policy, which is not the natural province of courts, belongs properly to the administrative agencies and, ultimately, to the executive and legislature that oversee them.”

  157. 157.

    E.g., Lisa Schultz Bressman, “Disciplining Delegation after Whitman v. American Trucking Ass’ns,” 87 Cornell L. Rev. 452 (2001-2002), arguing that “the [Whitman] Court should be understood as shifting the delegation inquiry from constitutional law to administrative law” (at p. 469) and noting that administrative standards, therefore a narrowing and disciplining of delegated discretion, can be imposed under step two of Chevron.

  158. 158.

    U.S. 837, at p. 865 (footnotes omitted).

  159. 159.

    Id., at pp. 865-866.

  160. 160.

    See generally Cass R. Sunstein, “Chevron Step Zero,” 92 Va. L. Rev. 187 (2006).

  161. 161.

    United States v. Mead Corporation, 533 U.S. 218, at pp. 226-227 (2001). This appeared in perfect synch with the proposal by Merrill-Hickman 2000-2001 (cited approvingly by the opinion) to reduce Chevron deference to the field of formal actions taken by agencies with the power to take “actions with the force of law” (binding individuals outside the agencies). Informal agency interpretations receive a much weaker, “multiple-factor,” pre-Chevron, ‘presumptive’ deference, “depend[ing] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control,” Skidmore v. Swift & Co., 323 U.S. 134, at p. 140 (1944).

  162. 162.

    U.S. 218, at p. 231.

  163. 163.

    INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Citing footnote 9 in the Chevron majority opinion to that effect: “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron, at p. 843, n. 9.

  164. 164.

    Id., at 446.

  165. 165.

    Ibid., at p. 454 (Scalia, J., concurring in the judgment).

  166. 166.

    Merrill-Hickman 2000-2001, at p. 867.

  167. 167.

    Namely, constitutional originalism and statutory plain meaning textualism. See, respectively, Antonin Scalia (Author) and Amy Gutman (Ed.), A Matter of Interpretation (Princeton, NJ: Princeton University Press, 1997) and Scalia 1989.

  168. 168.

    Gregory E. Maggs, “Reconciling Textualism and the Chevron Doctrine: In Defense of Justice Scalia,” 28 Conn. L. Rev. 393 (1995-1996) (quoting at p. 405 Thomas W. Merrill and at p. 394 William D. Popkin, respectively).

  169. 169.

    Justice Scalia himself opined that his strand of textualism predisposes rather to semantic optimism rather than deference at step one: “One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists.” Scalia 1989, at p. 521.

  170. 170.

    Adrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (New York: Oxford University Press, 1997). pp. 175-176.

  171. 171.

    Id., at p. 144.

  172. 172.

    Ibid., at p. 146.

  173. 173.

    Ibid.

  174. 174.

    Ibid., at p. 167: “One of the key reasons for the apparent failure of Chevron to eliminate if not significantly reduce uncertainty about deference is that the framework makes deference an individual rather than aggregate property of the judicial system, and relies on underspecified norms that are imperfectly internalized by judges.”

  175. 175.

    Barber v. Tennessee, 513 U.S. 1184 (1995).

  176. 176.

    Even though a denial can inflame passions and particular judges may choose to concur or dissent, in order to motivate their positions. But, in so doing, their posture acquires a political character. See Knight v. Florida, 528 U.S. 990 (1999).

  177. 177.

    See generally, Fuller 1978.

  178. 178.

    Fifteen years of constitutional practice have allowed us to observe that the procedure of adopting decree-laws has been ‘banalized’ to the point where, today, its use is so casual that the exceptional was transformed into norm without however acquiring the presumptive stability of a rule of law.

  179. 179.

    For an up-to-date comparative study of the procedural and institutional aspects respecting the control of delegations to the executive, see Pünder 2009 and sources referenced therein.

  180. 180.

    Marius N. Balan, unpublished constitutional law course notes manuscript on file with the author.

  181. 181.

    “The exercise of the legislative function may not be delegated to the Government unless principles and criteria have been established and then only for a limited time and for specified purposes.” Official English translation available at www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf (last visited August 26, 2011).

  182. 182.

    “la norme provisoire à perdurer, toujours provisoirement,” Maryse Baudrez, “Décrets-lois réitérés en Italie : l’exaspération mesurée de la Cour constitutionnelle en 1996,” 32 Revue française de Droit constitutionnel 745 (1997), at p. 747.

  183. 183.

    “In principle the democratic and open process of legislation is itself a safeguard of rights.” Norman Dorsen, András Sajó, Michel Rosenfeld, and Susanne Baer, Comparative Constitutionalism-Cases and Materials (St. Paul, Minn.: West Publ., 2003), at p. 247.

  184. 184.

    The same pattern can be observed in Romania, where the Constitution gives the Government power to issue “emergency ordinances” without prior parliamentary authorization by an enabling act (Art. 115). Emergency ordinances have as a result become the routine regulatory instrument and their number dwarfs both parliamentary legislation and ordinary delegations. For instance, according to the date on the Chamber of Deputies website, in 2011 as of August 26, 68 emergency ordinances were adopted (http://www.cdep.ro/pls/legis/legis_pck.lista_anuala?an=2011&emi=3&tip=18&rep=0), compared to 12 ordinary ordinances, adopted not on the basis of the constitution but on that of a regular enabling law, hence following the nominally “standard” procedure (http://www.cdep.ro/pls/legis/legis_pck.lista_anuala?an=2011&emi=3&tip=13&rep=0) (both websites last visited August 26, 2011). These general and relative constitutional mechanics are comparable, even though in other respects the normative needs and the general constitutional environment of a transitional post-communist country are distinct from those of the relatively stable Western liberal-constitutional democracies (such as Italy). The epistemological difficulties entailed by the need (and impossibility) to provide a constitutional definition of emergency, for the purposes of judicial review of the predicate for adopting such ordinances are also comparable. See, thus, the revealingly tautological definition of emergency given by the Romania Constitutional Court, as “the necessity and urgency of regulating a situation which, due to its exceptional circumstances, requires the adoption of an immediate solution, in view of avoiding a grave detriment to public interest” (Who could, indeed, disagree?) DCC nr. 67/3 februarie 2005, în M.Of. nr. 146/18 februarie 2005.

  185. 185.

    Functionally, the reach of the German constitutional provision is more limited than that of the US nodelegation doctrine; Art. 80 (1) of the Basic Law does not apply to delegations to private parties, for instance, and is restricted to delegated legislation proper, i.e., administrative rulemaking (the authorization to make ordinances with legislative force and effect).

  186. 186.

    “Any a priori division resulting from a system combining enumerated powers with a residual clause—irrespective of whether the first technique applies to the law-making or the regulatory function (the latter case was previously tried, without any systemic effects)—goes against the grain of the continuous character of the normative process and the kind of coherence implicit therein.”

  187. 187.

    Jean Boulouis, “L’influence des articles 34 et 37 sur l’équilibre politique entre les pouvoirs,” in Le Domaine de la loi et du règlement (Paris : Presses Universitaires d’Aix-Marseille, 1981), at p. 195.

  188. 188.

    An unsuccessful attempt was made early on to challenge the constitutionality of an enabling act by assimilating the notion of “program” in Art. 38 to the “declaration of program” in Art. 49. See 72 DC du 12 janvier 1977 (in Louis Favoreu, Loïc Philip, Les grandes décisions du Conseil constitutionnel (Paris: Dalloz, c1997)).

  189. 189.

    Authorized English translation, found on the website of the French National Assembly, at http://www.assemblee-nationale.fr/english/8ab.asp (last visited August 21, 2011).

  190. 190.

    Art. 37 Matters other than those coming under the scope of statute law shall be matters for regulation.

    Provisions of statutory origin enacted in such matters may be amended by decree issued after consultation with the Conseil d’État. Any such provisions passed after the coming into force of the Constitution shall be amended by decree only if the Constitutional Council has found that they are matters for regulation as defined in the foregoing paragraph.

    The Constitution gives Government the possibility of modifying legislative norms, enacted prior to the Constitution, falling outside the enumerated legislative competence specified in Art. 34, subsequent to a positive reference by the State Council. The Government can defend its legislative competence against legislative incursions by invoking Art. 37 (2) to de-legalize (and replace by decree regulation) post-1958 parliamentary provisions which encroach upon its Art. 34 residual competence (after a reference by the Constitutional Council that the parliamentary provisions do have in effect a caractère réglementaire).

  191. 191.

    Proposals to introduce American-style judicial review of constitutionality had been rejected during the Third Republic. The prevalent opinion of the times was best represented by a study authored by the influential comparatist Edouard Lambert, arguing against the American-style, reactionary “government of judges,” Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis (Paris: Giard, 1921).

  192. 192.

    -143 DC, Rec. 57 (30 juillet 1982), reproduced and commented in Favoreu and Philip, supra, at pp. 539-554: « Un dernier point mérite d’être souligné: la décision du 30 juillet a pour effet de ruiner définitivement la thèse de la définition matérielle de la loi. Car si une loi peut comporter des dispositions réglementaires sans être inconstitutionnelle, c’est que la loi se définit simplement comme l’acte voté par le parlement selon certaines formes, sans prendre en considération la matière sur laquelle porte cet acte. « (at pp. 547-548).

  193. 193.

    See (in addition to the sources and statistics in support of this claim provided in Le Domaine de la loi et du règlement), Louis Favoreu, ‘Les règlements autonomes existent-ils ?’ Mélanges Burdeau, Paris, 1977, pp. 405-420 and ‘Les règlements autonomes n’existent pas,’ R.F.D.A. 1987, pp. 872-884, statistical table at p. 884 : between 1982 and 1986, decrees under Art. 37 totaled a meager 76, compared to 6255 other decrees.

  194. 194.

    DC 86-207 du 25-26 juin 1986 (“Privatisations”), Favoreu-Philip supra, pp. 658-682. The strict enumeration of the constitutional limitations on both the enabling act and the ordinance itself is due to the fact that judicial review of administrative action by the Council of State operates traditionally only by strict reference to the law authorizing the decree. The specification was meant to give the Council of State ‘supplementary ammunition’ by specifying secondary norms of reference by virtue of which the ordinances could be reviewed. In practice, the Council of State only annulled 2 out of 160 ordinances adopted under Art. 38, at the very beginning (from 1959 to 1997, cf. Favoreu-Philip, supra at 674). The decision is translated and commented in Dorsen et al. 2003, pp. 243-248.

  195. 195.

    Attempts to by-pass by ordinances, during periods of cohabitation, the necessity of presidential signature for the promulgation of lois, have failed. Ordinances adopted ‘in Council of Ministers’ have to be signed by the President as well, cf. Arts. 13 and 38. The issue was left open by the Constitutional Council whether the formal condition of presidential signature is a discretionary prerogative (pouvoir discrétionnaire) or a constitutional duty of the President (compétence liée).

  196. 196.

    See Catherine Boyer-Mérentier, Les ordonnances de l’article 38 de la Constitution du 4 octobre 1958 (Paris: Presses Universitaires d’Aix-Marseilles, 1996). The figures are provided at pp. 329-330, n. 26.

  197. 197.

    The express protections provided by the specifications in Art. 34 were extended by the famous 1971 Associations Law Decision, 71-41 DC du 16 juillet 1971 (see translation and comments in Dorsen et al. 2003, pp. 122-124).

  198. 198.

    Problems arose, nonetheless, with respect to custodial administrative detentions. See Dorsen et al. 2003, at pp. 247-248.

  199. 199.

    Why make it simple, when it can be so complicated? Only the formalistic interpretation of Art. 80 in the Basic Law forces us down this cumbersome road, to enumerate in the text of the law of all possible details which could imaginably, at some indefinite point in time, be the object of an implementing decree.

  200. 200.

    The Constitutional Court has contributed nothing to a satisfactory clarification of the doctrinal relationship between the parliamentary reservation requirement (Parlamentsvorbehalt) and the requirements of Art. 80 Par. 1 Cl. 2. It can be only concluded that the Court has departed from its earlier jurisprudence, according to which enabling laws [according to Art. 80 Par. 1 Cl.2] had to correspond only to formal criteria of determinateness (Bestimmtheitsanforderungen), substantively unrelated to the specificity and importance of the normative subject-matter.

  201. 201.

    Sometimes translated as “statutory instruments.” For purposes of terminological consistency, I am using “ordinance.” The court subjects statutory enabling provisions to a substantial review, in order to determine if the requirements of Art. 80 (1) are applicable. See BVerfGE 10, 20 (Preußischer Kulturbesitz), holding that the legislative basis of the Charter (Satzung) of the Prussian Cultural Heritage Foundation was subject to the requirements of Art. 80 (1). Insofar as the charter was adopted by the Federal Government with the agreement of the Federal Council and comprised provisions with binding force outside the administration proper, it was in effect a substantive “ordinance” (Rechtsverordnung). A different interpretation “would have obscured the clear differentiation between the respective normative provinces of the Legislative and the Executive and thus opened a not unobjectionable road to circumvent Art. 80 (1).” (BVerfGE 10, 20 (51).

  202. 202.

    Delegated legislation adopted on a legislative basis prior to the entry into force of the Basic Law was subjected to the more restrictive requirements of Art. 129.

  203. 203.

    Durch Gesetz können die Bundesregierung, ein Bundesminister oder die Landesregierungen ermächtigt werden, Rechtsverordnungen zu erlassen. Dabei müssen Inhalt, Zweck und Ausmaß der erteilten Ermächtigung im Gesetze bestimmt werden. Die Rechtsgrundlage ist in der Verordnung anzugeben. Ist durch Gesetz vorgesehen, daß eine Ermächtigung weiter übertragen werden kann, so bedarf es zur Übertragung der Ermächtigung einer Rechtsverordnung. (“The Federal Government, a Federal Minister or the Land Governments may be authorized by a law to issue ordinances having the force of law. The content, purpose and scope of the powers conferred must be set forth in the law. The legal basis must be stated in the ordinance. If a law provides that a power may be further delegated, an ordinance having the force of law is necessary in order to delegate the power.” (Translation available at http://www.constitution.org/cons/germany.txt, last visited August 26, 2011.)) Note: The other sections of article 80, which deal with the division of power between states and the federation with respect to delegated law-making, touch on federalism issues that need not further detain us here.

  204. 204.

    RGBl. 295. In Wilhelm Mößle, Inhalt, Zweck und Ausmaß. Zur Verfassungsgeschichte der Verordnungsermächtigung (Berlin: Duncker & Humblot, 1990), at p. 22 n. 58.

  205. 205.

    Id., at p. 44, n. 152 (Bayr. Staatskanzlei G 67/47-Office of the Military Governor, Berlin, 31st of July 1947).

  206. 206.

    Bavaria and Hesse formed the biggest part of the US-administered zone.

  207. 207.

    Mößle 1990, at p. 53.

  208. 208.

    Gesetz Nr. 122 vom 8. Mai 1948 über den Erlaß von Rechtsverordnungen auf Grund vormaligen Reichsrechts (GVBl. S. 82). See Bernhard Wolff, “Die Ermächtigung zum Erlaß von Rechtsverordnungen nach dem Grundgesetz” AöR Bd. 78 (1952/1953), p. 194 ff., at p. 205 (observing that the provision is almost identical although superior in its formulation to that of the Federal Constitution, in that it provides that the specification of the purpose bears with precision on the purpose to be pursued by the delegate—whereas in the case of the Basic Law, one could very well interpret “purpose” as the legislature’s purpose for delegating). Interestingly, the content-purpose-scope restriction was not explicitly provided for in the text of the Bavarian Constitution (although the state constitutional court extrapolated the limitation, by way of interpretation, from the general rule of law guarantee (Rechtsstaatlichkeit)).

  209. 209.

    Mößle 1990, at pp. 55-56.

  210. 210.

    “schlechthin so vollkommen…wie eine Formel nur eben vollkommen sein kann”, H. J. Müller, Die Stellung der Rechtsverordnung im deutschen Staatsleben der Gegenwart (Diss. Köln, 1950, S. 57) quoted after Horst Hasskarl, “Die Rechtsprechung des Bundesverfassungsgerichts zu Art. 80 Abs. 1 Satz 2 GG”, AöR Bd. 94 (1969), 85 ff, at p. 86.

  211. 211.

    “The primary task of constitutionalism was the deflection of encroachments from the side of the monarchic administration against the industrial and exchange bourgeois society. Protecting basic rights against the law-maker was, although imaginable, unimportant, since the bourgeoisie was represented in the process of law-making. The right to intervene had to be reserved to the legislature and thus withheld from the administration. No encroachment in the liberty and property sphere without a statute-under this battle flag was carried the fight for legislative reservation, this major legal achievement of the bourgeoisie in its conflict with the crown and its administrative machinery.” Bodo Pieroth and Bernhard Schlink, Grundrechte. Staatsrecht II, 24.Auflage (Heidelberg: C.F. Müller Verlag, 2008), at p. 10.

  212. 212.

    Paragraph 242 in the Civil Code concerns “performance according to good faith” and reads: “The debtor is bound to perform according to the requirements of good faith, ordinary usage being taken into consideration.” (Der Schuldner ist verpflichtet, die Leistung so zu bewirken, wie Treu und Glauben mit Rücksicht auf die Verkehrssitte es erfordern. English translation found in Reinhard Zimmermann and Simmon Whittaker, Good Faith in European Contract Law (Cambridge: Cambridge University Press, 2000), p. 18, n. 59).

  213. 213.

    Wolff 1952/1953, at p. 198.

  214. 214.

    Hasskarl 1969, at p. 87.

  215. 215.

    Id., at p. 88.

  216. 216.

    Ibid.

  217. 217.

    Ibid., at p. 89.

  218. 218.

    Ibid., at p. 91.

  219. 219.

    Ibid., at p. 103.

  220. 220.

    Ibid., at pp. 103-105.

  221. 221.

    Ibid., at p 111.

  222. 222.

    “Emergency Price Control Case,” BVerfGE 8, 274, English translation in Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, N.C.: Duke University Press, 1997), at p. 138.

  223. 223.

    Hasskarl 1969, at p. 107.

  224. 224.

    BVerfGE 20, 257 (Bundesrecht in Berlin, 1966).

  225. 225.

    BVerfGE 20, 257 (264).

  226. 226.

    BVerfGE 20, 257 (270).

  227. 227.

    Ibid.

  228. 228.

    Cf. the comparative study by Uwe Kischel, “Delegation of Legislative Power to Agencies: A Comparison of the United Sates and German Law,” 46 Admin. L. Rev. 213 (Spring, 1994).

  229. 229.

    Cf. David P. Currie who, otherwise enthusiastically praising the German Constitutional Court’s attempt to grapple with nondelegation (which he thought contrasted favorably with the lack of stamina in the US jurisprudence), was in the end forced to admit that: “The decisions are numerous and not all easy to reconcile. They document the difficulty and uncertainty of administering a requirement that is necessarily a matter of degree.” (Currie 1994, at p. 133).

  230. 230.

    BVerfGE 20, 283 (291), quoted after Hasskarl 1969, at p. 107.

  231. 231.

    Cremer 1997, at p. 255.

  232. 232.

    BVerfGE 83, 130 (27 November 1990), The references provided are to the German decision, respecting its pagination. For citation, I am using the English translation by Nomos Verlagsgesellschaft (available online at http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=628, last visited September 2, 2011).

  233. 233.

    BVerfGE 83, 130 (132).

  234. 234.

    BVerfGE 83, 130 (136, 137).

  235. 235.

    Defined at BVerfGE 83, 130 (142): “The principle of the rule of law and the precept of democracy place upon the legislature the duty of formulating essentially by itself those regulations that are decisive for realization of basic rights-and of not leaving this to [the] activity and decisionmaking authority of the executive….As the intensity of potential infringements in areas protected by basic rights increases, the demands on determinacy also increase.”

  236. 236.

    BVerfGE 83, 130 (152).

  237. 237.

    BVerfGE 83, 130 (153).

  238. 238.

    See Pieroth and Schlink 2008, at pp. 60-63, observing parallel transitions from legislative reservation to parliamentary reservation and from legislative reservation to the “reservation of proportional legislation” (Vorbehalt des verhältnismäßigen Gesetzes). But cf. the acute skepticism expressed by one of the authors with respect to the possibility of the proportionality inquiry to provide a manageable normative criterion for rational adjudication and jurisprudence, Bernhard Schlink, “Die Entthronung der Staatsrechtswissenschaft durch die Verfassungsgerichtsbarkeit”, Der Staat, Bd. 28 (1989) S. 161 ff.

  239. 239.

    It can be asked almost endlessly why specific groups or viewpoints were included in the procedure and why different interests and groups were not taken into consideration. As the ministry also observed in its position on the complaint, “[i]t would be impossible to include all imaginable organizations; a measure of dispositive discretion of the federal minister was constitutionally acceptable” BVerfGE 83, 130 (137, 138): Es sei unmöglich, alle nur denkbaren Organisationen zu beteiligen; gewisse Dispositionsmöglichkeiten des Bundesministers seien von Verfassungswegen hinzunehmen (at 138).

  240. 240.

    [1999] 2 S.C.R. 817.

  241. 241.

    Par. 54.

  242. 242.

    On this issue, more generally, see Dyzenhaus and Fox-Decent 2001.

  243. 243.

    Par. 56: “The pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, and the language of the provision and the surrounding legislation. It includes factors such as whether a decision is “polycentric” and the intention revealed by the statutory language. The amount of choice left by Parliament to the administrative decision-maker and the nature of the decision being made are also important considerations in the analysis. The spectrum of standards of review can incorporate the principle that, in certain cases, the legislature has demonstrated its intention to leave greater choices to decision-makers than in others, but that a court must intervene where such a decision is outside the scope of the power accorded by Parliament.”

  244. 244.

    The entire case is pervaded with a general sense of nobility and elation against the grain of trifling legal technicalities. Much of the decisional outcome in the case was, for example, controlled by the “interpretative incorporation” into the factors controlling the administrative process of the Convention of the Rights of the Child, ratified but un-incorporated into domestic law by Canada (and thus technically of no domestic legal effect). The court glossed in Kantian tenor on how it would be hypocritical to allow the executive to ratify treaties but then allow the state to fully escape its international obligations due to the failure of parliament to incorporate them.

  245. 245.

    See Adrian Vermeule, “Our Schmittian Administrative Law,”122 Harv. L. Rev. 1095 (2009).

  246. 246.

    Dyzenhaus 2004.

  247. 247.

    [2002] 1 S.C.R. 3. Note that in Suresh there was risk of torture attending deportation, so that important Charter values were also implicated in the decision.

  248. 248.

    Art. 290 (1) TFEU (“Delegated Acts”). The other paragraphs provide procedural controls (possibility of revocation by Parliament and Council or entry into force if no objection has been expressed by these institutions within a deadline set by the enabling act) and the (also German-inspired) formal obligation to expressly state the legal basis in the text of the delegated act.

  249. 249.

    Luhmann 1990, at p. 187.

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    Dr. Bogdan Iancu

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Iancu, B. (2012). Delegation and Contemporary Implications: The Erosion of Normative Limits. In: Legislative Delegation. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-22330-3_4

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