PREFERENCE AND ADMINISTRATIVE LAW

• 成果类型: Article
• 署名作者: Candeub, D. A.
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2020
• 页码: 607-648
• 关键词: CONGRESSIONAL OVERSIGHT; rulemaking; POLITICS; ACCOUNTABILITY; PARTICIPATION; legitimacy; BUSINESS; COURT; state; MYTH

摘要

Several Supreme Court justices have expressed a willingness to reconsider the nondelegation doctrine. This constitutional principle has allowed Congress to hand over vast amounts of its lawmaking power to agencies, which, in turn, has fueled the administrative state's explosive growth in the twentieth century. These justices' openness to change, combined with their citation to legal academics who argue that the administrative state violates the Constitution and deep principles of common law governance, has renewed a vociferous academic debate over delegation's legitimacy. This Article takes a new perspective by recognizing that the nondelegation debate goes to the central tension in the separation of powers theory identified since at least the time of John Locke: any legislative grant to the Executive involves some discretion and thus arguably lawmaking power. Delegation is a matter of degree, not categorical dfference. The academic debate becomes intractable because it attempts to draw absolute lines based either on history or caselaw. These rigid categories lead to extreme views that either Congress is merely an advisory board pointing out areas in which agencies should impose legal duties or the entire administrative state is unconstitutional. If delegation is a matter of degree, then the nondelegation doctrine should require Congress to make big decisions while the Executive makes smaller, implementing decisions. Economic impact, which executive order already mandates agencies estimate, could serve as a metric for decision size, with regulations having economic impact above a certain threshold reserved for Congress. Legislation, such as the currently pending REINS Act, or judicial rulings, could draw a flexible line to ensure Congress's preferences predominate while allowing the discretion that executing the laws requires.