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.