Legislative delegation, the unitary executive, and the legitimacy of the administrative state

Harvard Journal of Law and Public Policy

Volumn 33, Issue 1, 2010, Pages 103-110

  Shane, Peter M ^a  

^a OHIO STATE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 78049315380     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (26)

1. See, e.g., Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1232 (1994).
2. See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995).
3. Pub. L. No. 110-343, 122 Stat. 3765 (2008).
4. See 15 U.S.C. § 41 (2006) (establishing the Federal Trade Commission as an independent agency).
5. See Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 376-77 (2002) ("The line between legislative and executive power (or between legislative and judicial power) must be drawn in the context of each particular statutory scheme. In every case, Congress must make the central, fundamental decisions, but Congress can leave ancillary matters to the President or the courts.").
6. Id.
7. Calabresi, supra note 2, at 103 ("[A] strongly unitary executive is normatively appealing....").
8. See Saikrishna B. Prakash, Fragmented Features of the Constitution's Unitary Executive, 45 WILLAMETTE L. REV. 701, 772 ("Congress creates the laws that executive officers enforce, thereby constraining the discretion of executive officers. These constraints on the unitary nature of the executive branch make Congress something of a second master over the executive branch.").
9. See id.
10. See Lawson, supra note 5, at 334.
11. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474 (2001) (explaining that "[i]n the history of the Court we have found the ... 'intelligible principle' [needed to avoid a violation of the nondelegation doctrine] lacking in only two statutes," and holding that, in the present case, "the scope of discretion [the section in question] allows is in fact well within the outer limits of our nondelegation precedents").
12. See id. at 462 (majority opinion written by Justice Scalia).
13. See, e.g., Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 906 (1991) (Scalia, J., concurring in part and concurring in the judgment) ("[I]t was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment on that power.").
14. See, e.g., Stephen G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 550-51 (1994) ("First and foremost, in interpreting text, commonsensically enough, one ought to begin with the text.... Second, though it is true that originalists have in the past made arguments based exclusively on history, they were forced to do so because the textual provisions that they were scrutinizing were more open ended than are the provisions relevant to the unitary Executive debate. Thus, when prior originalist scholarship has looked to history, it has always done so in a manner consistent with the primacy of the law of the text.... Finally, even after having demonstrated a textual ambiguity, no originalist should rely exclusively upon the Constitution's postenactment 'legislative' history, which is, after all, the history that is least likely to reflect the original understanding. It is better to examine exhaustively the preratification material first and only look at the post-ratification material if it is absolutely necessary to do.");
15. Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 398 (2002) ("Originalist analysis, at least as practiced by most contempo-rary originalists, is not a search for concrete historical understandings held by specific persons. Rather, it is a hypothetical inquiry that asks how a fully informed public audience, knowing all that there is to know about the Constitution and the surrounding world, would understand a particular provision. Actual historical understandings are of course relevant to that inquiry, but they do not conclude or define the inquiry-nor are they even necessarily the best available evidence.").
16. See PETER M. SHANE, MADISON'S NIGHTMARE: HOW EXECUTIVE POWER THREATENS AMERICAN DEMOCRACY 37-40 (2009).
17. See, e.g., Government Performance and Results Act of 1993, 5 U.S.C. §306 (2006) (requiring executive agencies to consult with Congress on strategic planning and to report annually to Congress on performance plans, goals, and results);
18. Freedom of Information Act, 5 U.S.C. §552 (2006) (mandating the disclosure of public records by executive branch agencies, but not by the legislative branch);
19. Reports Consolidation Act of 2000, 31 U.S.C. §3516(d) (2006) (instructing inspectors general to report to Congress concerning the most serious management and performance problems for their agencies as well as progress in solving those problems);
20. Legislative Reorganization Act of 1946, Pub. L. No. 79-601, 60 Stat. 812 (1946) (enhancing the oversight powers of the Comptroller General and General Accounting Office).
21. Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53, 55 (2008).
22. Id. (emphasis omitted).
23. See SHANE, supra note 14.
24. Id.
25. Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2097 (2005).
26. Id. at 2119.