Delegated Legislation Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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All countries that adhere generally to separation of powers find themselves in a dilemma. To an increasing extent, law in these countries is made not by the proper legislature, that is, the elected parliament, but rather by the executive branch. With the blessing of courts, legislators have delegated much of their lawmaking powers to administrators. Constitutional purists mourn that separation of powers is a major guarantee for freedom and that the shift of lawmaking authority from the legislative to the executive branch departs from the basic principle that delegatus non potes delegare (“a delegate cannot delegate”).These considerations, however, have long been bypassed by the need for administrative institutions to exercise lawmaking authority. The U.S. Supreme Court, for example, acknowledges that “In our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power.” These developments have placed administrators in a very powerful position. Thus, it has become one of the major tasks of constitutional and administrative law to channel this power. Above all, delegated legislation is further remote from the source of legitimation, the people, than parliamentary lawmaking. In a comparative perspective there are three approaches of ensuring that delegated legislation carries sufficient democratic legitimation.

A first means is parliamentary predetermination of the executive rule. German law, for example, proves that the proper legislature under the sword of Damocles of unconstitutionality is in most cases well able to prescribe for the executive a substantive program of delegated legislation. As the German Federal Constitutional Court puts it, the legislature is obliged itself to make the “essential” decisions to guarantee that parliament elected by the people bears political responsibility for all laws, including those created by the executive. This requirement can also be found in the judicature of the European Court of Justice. Originally American law was similar. The Supreme Court once forced Congress to make the “important choices of social policy.” The parallel is striking but not surprising, since American law was to a certain extent godfather at the birth of the actual German constitutional law after World War II (1939–1945).

In the meantime, however, American law allows more-or-less unfettered legislative delegation. The so-called nondelegation doctrine, once developed to restrict the delegation of lawmaking power, is “moribund,” as described by Chief Justice Marshall in Federal Power Commission v New England Power (1974). American courts generally are willing to accept meaningless formulas such as “public interest” to avoid the need to strike down statutes delegating power. In Britain, “skeleton legislation” is as legally acceptable as it is in the United States. Under the doctrine of unlimited sovereignty, there are no constitutional restrictions on the delegation of legislative powers.

A second technique of democratic legitimation is that parliament participates in the delegated rulemaking procedure. German and British law, for example, show that by means of subsequent approval, the proper legislature assumes political responsibility beyond the original empowerment. A lack of substance in the empowering legislation may be compensated by retrospective parliamentary participation in the creation of the executive rule. Similar reasoning governs to a certain extent the “comitology” procedures in the law of the European Union. In view of the far-reaching delegated powers and the independence of public bodies promulgating rules, one could be led to think that the U.S. Congress could at least also determine that rules created by administrative agencies require its prior approval. Indeed, Congress used to exercise such a legislative veto until—to the disappointment of many commentators—the Supreme Court in the notorious case Immigration and Naturalization Service v. Chadha (1983) pronounced the legislative veto to be unconstitutional on the grounds that it infringes the separation of powers.

Beyond this background, American law was left to develop a third approach to solve the problem of democratic legitimacy. Following the Supreme Court’s reasoning in Schechter Poultry v. U.S. (1935), public participation in the delegated legislative process serves as compensation for the lack of substantive definition of the empowering norm. One basis for this is the so-called interest representation model (somewhat supported by the “public choice theory”).According to the (albeit controversial) American approach, delegated legislation then has democratic legitimation similar to that of a statute if the public exercises influence over the rule-creating authority in a way similar to that exerted on parliamentarians (“corridoring” rather than “lobbying”). The tightly structured and judicially controlled public participation in administrative legislation is a unique character of American law. It is seen as a substitute for the classical democratic process of decision making, where parliamentary decision makers are elected and are politically answerable to the voters. The American model of participatory democracy shows that the characteristic elements of the proper legislative procedure—publicity of decision making, orientation toward balance of interests, and involvement of political minorities—can enrich the exercise of delegated powers and must do so in case the due legislative process cannot exert sufficient influence on rule creation.

Bibliography:

Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
Kischel, Uwe. “Delegation of Legislative Powers to Agencies—A Comparative Analysis of United States and German Law.” Administrative Law Review 46 (1994): 213–256.
Locke, John. Two Treaties of Government. London: Awnsham Churchill, 1690.
Marshall, Chief Justice John. Concurring Opinion in Federal Power Commission v. New England Power, 414 U.S. 352 (1974). Mistretta v. U.S., 488 U.S. 361 (1989).
Montesquieu, Charles de. De L’Esprit des Lois. Geneva: Barrillot, 1750.
Pünder, Hermann. “Democratic Legitimation of Delegated Legislation—A Comparative View on the American, British and German Law.” International and Comparative Law Quarterly 58 (2009): 353–378.
Exekutive Normsetzung in den Vereinigten Staaten und der Bundesrepublik Deutschland, with a summary in English. Berlin: Duncker and Humblot, 1995.
Schechter Poultry v. U.S., 295 U.S. 495 (1935).