Limits of Legislative Delegation
| DOI | 10.1177/000271624222100114 |
| Published date | 01 May 1942 |
| Date | 01 May 1942 |
| Subject Matter | Articles |
87
Limits
of
Legislative
Delegation
By
JAMES
HART
THIS
brief
section
will
seek
not
so
much
to
solve
as
to
point
up
what
is
believed
to
be
the
central
problem
relating
to
the
delegation
by
Congress
of
legislative
power.
This
problem
may
be
stated
as
a
question:
Does
the
&dquo;rule
against
delegation,&dquo;
as
applied
by
the
Supreme
Court,
threaten
to
defeat
the
efforts
of
our
political
democracy
to
use
government
as
an
instrumentality
for
the
effective
control
of
our
national
economy?
The
importance
of
this
question
de-
rives
from
the
apparent
conflict
between
the
traditional
constitutional
doctrine
that
Congress
may
not
delegate
its
legis-
lative
power,’
and
the
practical
neces-
sity
that,
when
Congress
undertakes
to
establish
regulation
of
major
aspects
or
segments
of
an
economy
so
complex
and
changing
as
our
own
has
now
become,
it
must
devolve
the
job
in
large
measure
upon
the
administrative
agencies
of
gov-
ernment.
No
reasoned
answer
to
the
central
question
will
be
possible
until
the
im-
plications
and
applications
of
the
con-
stitutional
doctrine
shall
have been
explored.
This
will
involve
reconsidera-
tion
of
the
public
law
bases
of
the
doc-
trine,
and
examination
of
the
interpreta-
tion
of
the
doctrine
by
the
Supreme
Court
of
the
United
States.
Only
then
will
one
be
able
to
venture
a
guess
as
to
the
impact
of
the doctrine
upon
vari-
ous
possible
forms
and
degrees
of
eco-
nomic
regulation
in
the
postwar
era.
WHY
RE-EXAMINE
THE
DOCTRINE?
Why,
it
may
be
asked,
should
the
public
law
bases
of
so
venerable
a
doc-
trine
be
re-examined
at
t
this
time?
Why,
in
particular,
should
this
re-exami-
nation
be
made
independently
of
Su-
preme
Court
precedents?
This
is
a
pertinent
query,
and
it
deserves
a
frank
answer.
The
Supreme
Court
itself
is
even
now
engaged
in
working
out
the
implications
of
what
Professor
Corwin
has
well
called
Constitutional
Revolution,
Ltd.2
Un-
der
the
impact
of
this
long
overdue
revo-
lution
in
constitutional
interpretation,
the
cry
is
naturally,
&dquo;Back
to
the
Con-
stitution !&dquo;
This
means
that
when
the
constitutional
law
that
has
been
built
upon
precedents
which
antedate
the
American
industrial
revolution
is
not
well
adapted
to
modern
circumstances
and
needs,
it
is
permissible
to
go
behind
such
judge-made
law
and
re-read
the
constitutional
text
itself,
to
see
if
its
language
may
not
be
consistent
with
a
new
and
more
suitable
construction.
The
assumption
is
not,
except
for
very
naive
persons,
that
this
return
to
the
Constitution
will
lead
to
the
&dquo;true&dquo;
meaning
of
a
document
which
a
hard-
hearted
Supreme
Court
has
in
the
past
&dquo;misinterpreted.&dquo;
3
The
assumption
is
rather
that
a
written
constitution
&dquo;is
not
a
code
of
civil
practice,&dquo;
4 but
&dquo;in-
tended
to
endure
for
ages
to
come,
and,
consequently,
to
be
adapted
to
the
vari-
ous
crises&dquo;-and
economic
revolutions-
&dquo;of
human
affairs.&dquo;
5
1
This
paper
does
not
consider
this
doctrine
as
applied
in
the
states.
See
Tavern
Code
Au-
thority
case,
220
Wis.
25,
264
N.
W.
633
(1936).
2
Edward
S.
Corwin,
Constitutional
Revolu-
tion,
Ltd.,
Claremont,
Calif.,
1941.
3
See C.
K.
Ogden
and
I.
A.
Richards,
The
Meaning
of
Meaning
(New
York,
1927),
pas-
sim.
4 From
Mr.
Justice
Cardozo’s
dissenting
opinion
in
Panama
Refining
Co.
v.
Ryan,
293
U.
S.
388,
447
(1935),
commonly
called
the
Hot
Oil
case.
5
From
Chief
Justice
Marshall’s
opinion
in
McCulloch
v.
Maryland,
often
quoted,
as
by
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