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Can Congress Sub-Delegate Legislative Powers?

Professor Gary Lawson argues that there are some powers that Congress cannot delegate to other entities, such as administrative agencies. The Constitution specifies that “all legislative power” is vested in Congress. The Constitution does not authorize Congress to opt out of its specified function. Professor Lawson explains how the Constitution resembles a particular type of document called a “fiduciary instrument.” These documents explicitly stated an agent who was authorized to make transactions on behalf of someone else. Congress, not administrative agencies, has been authorized by “We the People” to make laws. https://youtube.com/watch?v=B6IJezhyNDo


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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