The way our system is currently set up, when Congress wants to create an agency with rulemaking power, they put it in the executive branch. This seems natural, since the President’s job is to execute the laws of the nation. But is it really necessary to put the creation of those laws(er sorry, rules) in the hands of the executive branch?
Could not Congress set up an agency in the legislative branch with rulemaking power? Is there something in the Constitution that requires them to use the executive branch for this purpose? I know they’d have to for enforcement of rules, but I would think making the actual rules would be a legislative function.
Bonus question: are there any states, or other nations, that put these agencies out of the reach of the executive? How does it work in a Parliamentary system where the legislative branch head is also the head of government?
The Chadha case established that Congress cannot have a legislative veto over particular decisions by the executive branch, applying the law to a particular case. However, I don’t think that’s quite what you’re asking. You’re asking if Congress can delegate the regulation-making power to a sub-unit of the legislative branch? Don’t know if the question has come up.
My understanding of the regulation-making power for the executive agencies is that they have the power to set out Rebs which in their view are consistent with the statutory mandate and necessary for the implementation of the statute. Congress has to give sufficiently intelligible legislative directions for the executive agencies to make regs in this way.
That’s half their job. They also make law, although they call it rules to skate around that issue. Not that it would work better, but if Congress wanted to, would they be able to put the rulemaking half of that power under their own purview and leave the executive branch out of it? They can already choose to pass every single regulation on air quality themselves, they just choose not to because they don’t have the floor time or the expertise, so they delegate it. But couldn’t they delegate it to an entity other than the executive branch if they so chose? Just the rulemaking part.
Yes, that’s how it’s done and it is perfectly constitutional according to court rulings. I just wonder if they can ONLY delegate to the executive branch. Could they set up a totally independent entity? Would the Fed or FAnnie Mae already qualify?
Nitpick; in a parliamentary system the head of government/chief executive is typically a member of the legislature, but not the head of it.
But, to answer the question; it’s common in parliamentary democracies for the legislature to delegate some defined legislative authority to executive agencies - typically to ministers, as heads of executive departments. So an Act of Parliament, say might create the offence of parking in a prohibited area, and then delegate to the Minister of Transport the power to make regulations defining or identifying prohibited areas.
Often there is some provision for review/control by the legislature - e.g. the Minister may make regulations dealing with a particular matter, but he must lay those regulations before Parliament and Parliament can revoke or annul them.
There are frequently some broad constitutional limitations on the extent to which Parliament can delegate power - e.g. the primary legislation, enacted by Parliament, must contain fundamental principles and policies which guide and control the secondary legislation which the Minister can make.
Could Parliament establish a body whose particular function was rule-making in a particular area, and then delegate rule-making powers to it, while giving it no executive functions? In principle, yes, but it never seems to have struck anybody as a terribly good idea. Parliament frequently establishes bodies to regulate, e.g., the operations of banks, but it usually gives such a body the power both to make the regulations and to police them. It would be possible to establish (a) one body to make the rules, and (b) a separate body to enforce them, but I’m not sure that any advantage would accrue from this.
In some ways your question historically backwards, and you should be asking whether Congress can delegate any rule making authority to the executive branch. The delegation of legislative power is a major issue in Constitutional Law; some scholars (e.g., Chemerinsky) have pointed out that federal agencies, to the extent they possess a combination of authorities reserved to separate branches of the government (legislative authority to make regulations, executive authority to enforce them, and judicial authority to adjudicate them), seem to be in conflict with the constitutional principle of separation of powers.
In fact, this idea that Congress could not delegate rule-making authority to the executive branch–the nondelegation doctrine–was the basis for much of the Supreme Court’s decisions up to the 1930s – for example, Schechter Poultry Corp. v. US. Since that time, however, the Court has moved away from the nondelegation doctrine and has upheld largely all Congressional delegations of authority. From a practical perspective, this is just a necessity because the Court recognizes that in a complex modern world it is virtually impossible for Congress to write technical and detailed regulations without delegation to the respective agencies.
True, and that’s why I was wondering why they don’t keep those functions separate. As the previous poster said, it might not be most efficient to have to separate agencies do the job, but on criminal issues that’s exactly what we do. Legislatures and counties and cities make the laws, and police enforce them while courts adjudicate them. it’s not strictly necessary to put all three functions in one agency, even if it is most efficient.
So that leads me to another question: could Congress delegate law making authority to the FBI? Or immigration rulemaking authority to the INS and ICE? Because they darn sure want to keep that stuff separate.
As UDS points out, the power to delegate reg-making power in a parliamentary system isn’t based on the fiction of the executive “interpreting” the laws passed by the legislature. Parliament can delegate the legislative power to the Cabinet, to agencies, and so on. Those regs are laws, just like the laws passed by Parliament itself. The limitation is that the regs passed by the Cabinet must be intra vires the regulation-making power which Parliament has delegated.
In fact, in Canada, Parliament can even delegate the power to amend federal statutes. It has on occasion delegated that power to the federal Cabinet. There are similar examples at the provincial level.
That’s certainly true, but efficiency is an important reason Congress delegates its authority to federal agencies. In many ways, this is also the reason these agencies have executive and judicial authority.
Consider the Department of Veterans Affairs as an example. Congress wanted certain veterans to receive benefits, so it passed a law stating so. However, Congress doesn’t (and realistically can’t) make individual determinations of which veterans deserve benefits, so the law it passed also sets up an organization and procedure for veterans to apply for benefits. The law does this by authorizing the VA to hire administrative law judges to adjudicate claims for benefits. But what evidence are these judges supposed to consider when making these decisions? What’s the procedure they should follow? The law passed by Congress may lay out some general guidelines, but because Congress does not have the technical expertise in the area the law leaves it up to the VA to promulgate regulations to fill out those gaps.
Would it make more sense for two separate agencies to promulgate the rules (the “legislative” authority) and adjudicate claims (the “judicial” authority)? I don’t know. Why not simply have a Congress pass more specific legislation, and have the claims adjudicated by an Article III judge in federal court? From the sheer number of claims filed each year, it’s just more efficient to have a single agency with technical and legal expertise handle both the rule making and the adjudication.
Depends on what you mean by “law making authority.” Has Congress provided general principles in the law in question? Or does the law give a blank check to the FBI to pass laws? The former would likely be okay, but the latter probably not. The Supreme Court has stated that when Congress delegates authority it must give at least “intelligible principles” to guide the respective agency.
Here’s a possible example. Couldn’t Congress let the INS set immigration quotas and limits for visas, in much the same way that the Fed controls the money supply? Currently immigration quotas are set by statute, but I’d assume Congress could delegate that.
Same with the FBI. While this sounds scary, couldn’t Congress pass an “Anti-Terrorism Act” that allows the FBI to set rules on what constitutes terrorist activity and try terrorists in special terrorism courts? Obviously all this would have to be consistent with the Bill of Rights, but the structure itself doesn’t sound like it would be a problem legally.
I agree with everything UDS has said. And yes, traditionally parliament has been quite phobic of making executive decisions for itself, as it would mean parliament would be holding itself to account for the decision.
I remember a few years ago now when the House of Lords Secondary Legislation Scrutiny Committee was writing letters to the Home Secretary about some issue, the matter the upcoming nomination of a Children’s Commissioner was raised, and the Home Secretary invited the Committee to suggest names for the post. The Committee wrote back saying in no uncertain terms that it would be inappropriate.
Oh. Yes. In the UK there are Henry VIII powers, which allow the Executive to amend primary Acts. They’re generally frowned upon and parliament (particularly the Lords) works hard to find them and strangle them at birth.
The current Bill for exiting the EU is full of them.
Sent from my iPad using Tapatalk
Obviously the extent to which any agency of government can be given both legislative and executive powers depends on the constitution of the country concerned. In the UK, without a fixed written constitution, that particular border can be blurred as much as Parliament likes, and the effective constraint is Parliament’s reluctance to blur it beyond a certain point (which, as already noted, is very real). In other parliamentary democracies there may be written constitutions which limit the extent to which Parliament can confer legislative powers on executive bodies. But even then Parliament’s reluctance may impose further restraints - i.e. Parliament may refuse to make a legislative delegation even though it would be constitutionally permissible.
Indeed it does sound scary. Wrong, even. Apart from the military, matters of crime, trial and justice end up in the hands of the Judicial Branch. In order to have a trial outside the judicial branch, you would have to classify terrorism as some thing other than a crime. Since all terrorist acts are criminal in nature, this becomes rather problematic.
So you would get into some strange territory. If the parties involved probably do not want to get sucked into the terrorism remediation system, they will fight to be handled by the traditional legal system. And since humans are imperfect, there must be a mechanism to support such challenges, handled by the Judicial Branch. If you do not include that, you end up with a gestapo.
Then, of course, the FBI itself is a subunit of the Executive Branch (DoJ, I think). Congress would have to create the Agency for the Prevention of Terrorism and somehow make it not a part of the Cabinet. But APT would have to report to someone (a Congressional subcommittee, perhaps) and its director would have to be chosen, as needed/required, by Congress. Otherwise, it would become some weird kind of wildcat police organization.
Meanwhile, for this to happen, the President would have to sign the establishing legislation. Good luck with that (a two-thirds majority is pretty fucking hard to scare up).
In Oregon, every Administrative Rule (OAR) must be allowed by the Statutes (ORS) … indeed most OAR’s are specifically required under ORS’s … for example, the legislature passes (and the governor signs) an ORS that directs the Secretary of Labor to write the OAR’s to implement Federal workplace safety rules … the main reason is that the Secretary of Labor is a full-time job, whereas the legislature only meets for three or four months every other year … any change that comes down the line, like using 1/2" rope for lanyards instead of 3/8", it could take up to 18 months to get the ORS changed, but the OAR can be changed right away …
We also use an addition step in the judicial review process… this is either a bug or a feature, depending on your point of view, if the complaint is over an OAR, then the matter originates with an administrative judge, usually some bureaucrat with no law experience, and still within the Executive Branch of State government … it’s a little too much of a buddy/buddy system IMEIO, however these matters can be appealed to the Circuit Court (lowest Judicial Branch court) where the complaint will get an actual fair hearing … all my complaints fell on deaf ears in these administrative proceedings, so yeah, that’s why this comment sounds like sour grapes, so sue me …
Of course, every OAR is subject to review by the legislature … usually just the threat of dragging the offending Secretary through 14 different sub-committee hearings is enough to get the person to co-operate …
It would be awesome to delegate to INS, since they no longer exist… perhaps you meant USCIS. Regardless, the difference is right there in the names - USCIS is the US Customs and Immigration Service; ICE is Immigration and Customs Enforcement. They have different, but closely related missions. USCIS is primarily interested in documenting/establishing/processing immigration status and related stuff, whereas ICE is a straight-up law enforcement agency.
And yes, delegation happens all the time. The Administrator of DEA, for instance, can declare a substance/drug basically “bad for America.” Interestingly, the FDA can then come along and countermand that (usually after hard lobbying from the pharmaceutical industry). These kinds of things happen all the time; look at all the fun stuff going on lately at EPA, for example; they’re actually countermanding their own regulations since roughly mid-January…