Delegation Chapter 5

What is Delegation? As mentioned in the Unit 1 seminar, Congress does not have the ability or expertise to fully regulate all subjects. Therefore, it transfers some of its lawmaking authority to agencies that do possess the expertise and resources to develop a complete regulatory scheme.

Can delegation violate the Constitution? Yes, in three ways: Congress may delegate too much of its own authority to an agency. Congress cannot delegate to an agency its own essential functions or the essential functions of the judicial branch. Congress may not make a delegation that gives one branch oversight or control over an agency that is performing the functions of another branch.

Delegating legislative authority Article 1, Section 1, of the Constitution provides that ALL legislative authority of the United States rests with Congress. There is no mention of agency rulemaking power in the Constitution.

Great Depression The situation changed during the late 1930’s when the Great Depression led to the creation of many new agencies, each with broad delegation of authority. Because of the need to confront the serious economic crisis quickly, much of the enabling legislation hurriedly drafted.

The Non-delegation Doctrine Today Since 1935, the non-delegation doctrine, a delegation of legislative authority is constitutional if Congress establishes the nation’s fundamental legislative policy and leaves only the “gap filing” to an agency.

How Does Congress Convey this message? Courts have used different language to express this idea. They are often called “standards” or “intelligible principle.”

Standards and Intelligible Principle Standard: A set of rules or guidelines from which an agency or person must work. Intelligible Principle: Doctrine that requires Congress to provide agencies with legitimate, comprehensible guidelines to limit the authority of the agency when exercising delegated rulemaking authority.

Delegating Judicial Authority There is a distinction between “public rights and private rights” Public Rights: Commonly involve a suit between the government and a citizen. Private Rights: Those suits between individuals. **General rule-Congress may delegate the adjudication of public rights to non-Article III tribunals.

Delegation and Criminal Law Because violations of criminal law can result in serious limitations of liberty, delegations of such authority are subject to special rules. The Executive branch is responsible for enforcing the law; therefore law enforcement agencies conduct this as part of their executive function. Delegation issues do not rise in this context.

Arrest and Detention Although agencies cannot order the imprisonment of individuals as punishment, they may arrest and detain persons if the action is justified in extreme circumstances. Give me an example of an agency detaining someone.

Court-Packing Plan Displeased by the Supreme Courts decisions in many cases, President Roosevelt proposed to Congress that it enlarge the Supreme Court by permitting a new appointment for every justice over the age of 70. At the time of his proposal, there were six justices that were over 70.

Court-Packing Plan continued Roosevelt contended that the older justices were out of touch and that adding younger members would make the court more contemporary. **Opponents of the plan asserted that the plan was a transparent attempt by the president to control the judiciary.

Quiz Review Show what you know!!

Final Project Unit 3: Submit List of Issues to be Discussed Unit 4: Submit Thesis Statement Unit 6: Submit Final Project Outline Unit 7: Submit A Draft of the Final Writing Project

Submit List of Issues to be Discussed For Unit 3, you are simply providing a list of the issues. This can be on a word document with the issued individually bulleted. For example: Issue 1 Issue 2 Issue 3 Issue 4

Submit Thesis Statement For Unit 4, you will be submitting your Thesis Statement. Keep in mind, that this is a statement; not a full essay on what you intend to explain/elaborate/prove. The thesis statement can be a full paragraph, but no longer than that.

Submit Final Project Outline In Unit 6, you will submit the outline. The outline is basically the draft of your Final Project. The outline should be detailed enough that you could use it solely as a resource for your Final Paper.

Submit A Draft of the Final Writing Project In Unit 7, you will submit the draft of the final project. Keep in mind that you are writing a legal memorandum as well as a Motion for a Protective Order. Your memo should be in the following format:

Legal Memorandum Format To: From: Re: Date: _____________________________________ Substantive Content

Sample Motion for Protective Order