Home Law Constitutional Sunsets and Experimental Legislation: A Comparative Perspective
Non-delegation Theory in the United States
The departure from the German perspective does not mean that the limits for legislative delegation have not been discussed in the United States or that these legality questions are not relevant. The discussion in the US literature has also played a role in the design of the above-described framework. On the other side of the Atlantic, it has been equally visible that with an increasingly more diverse and changing society, Congress has been forced to delegate ‘the duty of doings things which in the inception of the government it might well have done itself’. This has been mainly executed through legislative delegation. The growing use of ‘big waivers’ to update law, introduce innovations in the market and encourage experimentation, justifies the need to discuss the boundaries of legislative delegation in this country.
The most traditional non-delegation doctrine prohibits the legislator to delegate its legislative power to another branch of government. In the past there were examples of statutes being struck down by the US Supreme Court when the legislator delegated power to agencies without providing sufficient standards to delimitate these agencies’ discretion.  
The leading cases are Panama Refining Corp. v. Ryan64 and A.L.A. Schechter Poultry Corp. v United States65 from the 1930s where, in the New Deal context, the US Supreme Court invalidated a Congressional delegation of legislative powers. Although the federal or state Constitutions do not explicitly forbid legislative delegation, the arguments against broad delegation have been based on article I of the (Federal) Constitution which consecrates the doctrine of separation of powers. The interpretation of this article has diverged in the US literature and varied between the mentioned non-delegation doctrine and the ‘exclusive delegation’ doctrine which advocates that ‘an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress’, in other words, ‘only the Congress’ may delegate lawmaking power.
According to the US Supreme Court interpretation of ‘delegation of legislative power’, there is no unconstitutional delegation as long as the agency’s discretion has been confined by an ‘intelligible principle’ laid down by the Congress. In Yakus v. United States, the US Supreme Court expressed the need to set criteria for evaluating legislative standards that guide an administrative agency through the execution of the legislator’s will. In the above-described framework, more than just this ‘intelligible principle’ is required as a statutory basis for experimentation.
In the past decades, both the US Supreme Court and state courts have followed the different trend of upholding broad delegations of legislative power. This doctrine will only be briefly explained, since in practice it has not been used by the US Supreme Court as the grounds to strike down an act of Congress since the New Deal A.L.A. Schechter Poultry Corp. v. United States case. The non-delegation doctrine is considered to be nowadays ‘effectively unenforceable’ and even a ‘dead letter’. Nonetheless, this doctrine remains useful at the state level, although it might have lost its importance as far as Acts of Congress are concerned. In addition, the Supreme Court sometimes refers to the non-delegation doctrine when interpreting broad statutes or explains its reasoning in the light of this doctrine.
The idea that the legislator should make the fundamental political choices underlies the non-delegation doctrine. Although it could be argued that the agencies’ legitimacy to take decisions resides in their expertise, the fundamental ‘political decisions involve values and there are no real values experts’. Thus agencies and other administrative authorities to whom powers have been delegated (should) make statutorily constrained choices. This is equally true in the case of experimental regulations, only here agencies will limit the scope of application of this choice.
Alexander and Prakash argue that if Congress is allowed to delegate its lawmaking power (article I, section I, conventional delegations), then it is also possible to claim that this institution could also delegate other
Congressional powers, notably the power to propose amendments or approve treaties. Although both scholars acknowledge the far-reaching effects of such an extensive interpretation, they wish to draw attention to the dangers of unconstrained delegations. US Constitution, article I, section I does not, however, forbid legislative delegation, and although there are arguments for both non-delegation and exclusive delegation, there is no strong evidence that the Framers did not admit a certain degree of overlap between the legislative and executive powers. There are thus less strict positions regarding legislative delegation in the United States, which have served as inspiration for the above-described framework.
Interpreting the US Constitution and the non-delegation doctrine, Lawson claims that Congress can assign a function to another actor or authorize that actor to make a decision that Congress could have also made; however, ‘the real question is whether Congress is attempting to authorize another actor to exercise power that exceeds that actor’s enumerated constitutional powers’: making ‘ancillary decisions about the operation and meaning of a statute’ is far from doing so. Although the ‘theory of essentiality’ is not present in the US literature, the mentioned position brings us to similar conclusions.
The questions that remain unresolved are how far these actors may go, and how their discretion should be limited so that their acts are traceable to the power originally granted by Congress. Different positions have been put forward in the United States. It has been argued in the literature that although state courts apply the (non-) delegation doctrine, states implement different material criteria varying from ‘strict’ standards and safeguards to ‘loose standards’. In the first cases, delegations of legislative power will be upheld if they are constrained by a statutory basis containing ‘adequate standards of policy or an intelligible principle for the agency to follow’. Among the states striking down broad delegations depleted of guiding standards are notably Ohio, Oklahoma, Pennsylvania, New York and Texas. The second category of states authorizes broader legislative delegations as long as the statute contains general guidelines to be followed by administrative agencies. These guidelines can be materialized in general standards, procedural safeguards or a blend of both. Examples of states implementing this second approach are Indiana, Georgia, New Jersey and Minnesota. The question to be raised in this context is: which of these paths should be chosen for the legislative delegation in the case of experimental regulations?
It results from the above-presented framework that not only broad guidelines and fundamental political and policy decisions should be attributed to the parliamentary legislator, but also other material elements, such as duration and evaluation criteria, must not be left to the executive. This is not a plea for strict rules, but rather for a clear delimitation of the path to be followed and its limitations. However, it is up to the executive to decide how it will cover it. Despite the non-existence of a theory of essentiality in the United States, it seems that also in this jurisdiction the most ‘important’ decisions should be made by the legislator.
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