Copyright (c) 2008 The Journal of Law & Politics, Inc.
The Journal of Law & Politics
ARTICLE: Grazing, Grimaud, and Gifford Pinchot: How the Forest Service Overcame the Classical Nondelegation Doctrine to Establish Administrative Crimes
24 J. L. & Politics 169
Robert Cushman pithily summarized the conventional understanding of the nondelegation doctrine more than 60 years ago. The Supreme Court, he wrote, applies the following syllogism when deciding whether Congress has unconstitutionally delegated legislative power to the executive branch:
Major Premise: Legislative power cannot be constitutionally delegated by Congress.
Minor Premise: It is essential that certain powers be delegated to administrative officers and regulatory commissions.
Conclusion: Therefore the powers thus delegated are not legislative powers. 1
The Court has hidden these practical concerns, the argument goes, by applying a veneer of conclusory labels. It labels policy-making authority whose delegation is necessary to effective governance "administrative," "executive," or "quasi-legislative" power, anything but what it really is: legislative power. The only two instances in which the Court struck down a statute as an unconstitutional delegation of legislative authority are dismissed as the result of the unique circumstances surrounding the New Deal. 2
This faith that the nondelegation doctrine is merely a pass-through for functional concerns, however, would have surprised the government lawyers who fought for more than a decade at the turn of the 20th century to establish the constitutionality of what are now known as administrative crimes - crimes whose elements are defined by administrative regulations rather than by statute or the common law. Their fight began when Congress, in 1897, attempted to stop the rampant over-grazing that was devastating the newly created national forests by explicitly granting the Secretary of Interior the authority to issue whatever regulations ...
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