Delegation of authority

“ When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation. ”

“ When Congress, through express delegation or the introduction of an interpretive gap in the statutory structure, has delegated policy-making authority to an administrative agency, the extent of judicial review of the agency's policy determinations is limited. ”

“ If, then, it embraces the rules of practice, the modes of proceeding in suits; if it adopts future State laws to regulate the conduct of the officer in the performance of his official duties, it delegates to the State legislatures the power which the constitution has conferred on Congress, and which, gentlemen say, is incapable of delegation. ”

“ Everything flows directly or indirectly from the power immanent in the Sovereign. Governors and nominated members of Legislative Councils owe their commissions directly, and officials below them indirectly, to his delegation of power. ”

“ The limitation of powers delegated by the people of the United States, in the federal Constitution, or of a State, in its constitution, implies a delegation of powers adequate to performance of legitimate civil functions. The large question involved in every case of a constitutional nature, or constitutional construction, is whether in the discharge of a function, or an office, the government, or any department of it is transcending its delegated powers. ”

“ We virtually and implicitly allow the institutions of any Government of which we enjoy the benefit, and solicit the protection. In wide extended dominions, though power has been diffused with the most even hand, yet a very small part of the people are either primarily or secondarily consulted in Legislation. The business of the Publick must be done by delegation. The choice of delegates is made by a select number, and those who are not electors stand idle and helpless spectators of the commonweal, wholly unconcerned in the government of themselves. ”

“ The Constitution has not only made a general delegation of the legislative power to one branch of the Government, of the executive to another, and of the judicial to the third, but it has specifically defined the general powers and duties of each of those departments. ”

“ Rep. 1125. Whether it could delegate the power, if it possesses it, we also leave untouched, beyond remarking that so unqualified a delegation would present the constitutional difficulty in most acute form. ”

“ As a Cabinet officer he should not be there without your hearty, cheerful assent, and I believe that is the judgment and opinion of every fair-minded man. As the holder of a civil office, having the supervision of moneys appropriated by Congress and of contracts for army supplies, I do think Congress, or the Senate by delegation from Congress, has a lawful right to be consulted. ”

“ As with us, the great leading rule must be, that when an officer does an act purporting to bind his Government, the first step in proof of its validity is to show his authority to bind the Government. ”

“ When, therefore, it is considered, that there is no legal obstacle to the assumption by the assembly of all the powers legislative, executive, and judiciary, and that these may come to the hands of the smallest rag of delegation, surely the people will say, and their representatives, while yet they have honest representatives, will advise them to say, that they will not acknowledge as laws any acts not considered and assented to by the major part of their delegates. ”

“ That the other political authorities in the given society are subordinate to the sovereign or supreme one; deriving their political powers from its express or tacit delegation, and holding those powers at its pleasure. ”

“ If we—the people in this Territory, or in other Territories or in the States, confer certain powers on the General Government, we no longer retain them, they are ceded away by us to others. If we give to our legislators certain authority, they hold that authority, and it is for us to submit to the laws which may be enacted by them. ”

“ Very well; when society became large and extensive, and could not convene in a general assembly to represent themselves, they would send their representatives, who would combine to represent their interests by delegation, or proxy. ”

“ And it would be strange indeed if a nation that organized its government on the principle of rule by the delegates of the people should allow one delegate, even though he be the chief magistrate, to arrogate to himself a preponderating influence in either internal or foreign affairs. In a crisis it may be well for one man to possess almost dictatorial powers, but it is a healthier and saner sign when counsels emanate from the council chamber, and not from the cabinet of the roi de fait. ”

“ Others laboured to have the supreme authority to consist of an Assembly chosen by the People, and a Council of State to be chosen by that Assembly, to be vested with executive power, and accountable to that which should next succeed, at which time the power of the said Council should determine. ”

“ The wisdom and the constitutionality of these broad delegations are matters that still have not been put to rest. But for present purposes, these cases establish that, by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law — the substantive rules that regulate private conduct and direct the operation of government — made by [p986] the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. ”

“ We have seen, in our review of the popular branch of the government, how closely its authority pressed even on the executive functions of the administration. The monarch was still further controlled, in this department, by his Royal or Privy Council, consisting of the chief nobility and great officers of state, to which, in later times, a deputation of the commons was sometimes added. ”

“ There are, indeed, inherent powers; but they are in the body, and not in the officer. He is a mere agent to execute the will of the former. He can exercise no power which he does not hold by delegation, either express or implied.” [139]
Then again, in reply to an illustration that had been employed, he says:—
“There is not the least analogy between the rights and duties of a judge and those of a presiding officer in a deliberative assembly. ”

“ By reason, also, of its popular origin, and the frequency with which the short term of office of its members requires the renewal of their authority at the hands of the people,-the great source of all power in this country,-encroachments by that body on the domain of co-ordinate branches of the government would be receive with less distrust than a similar exercise of unwarranted power by any other department of the government. ”

“ The original of all that power, that the primores or representatives can claim, is from the people, not from themselves; from whence derived they their being representatives, but from the people's commission or compact? when at the first constitution of parliaments, or public conventions for affairs of state, necessity put the people, who could not so conveniently meet all, to confer that honour and burden upon the best qualified, and who had chief interest by delegation. Hence, if the people give such a power, they may wave it when perverted, and act without their own impowered servants. ”

“ On the contrary, a direct democracy is premised upon an order-bound delegation relationship under which, when the citizenry exercises sovereign power through the representative institution, the citizens in non-abstract form issue upon the representative institution a concrete order with binding force, and, upon failure to follow the order, the citizens may dismiss the representative institution. ”

“ The principle is universally admitted, that, wherever an authority is delegated to any public officer, to be exercised at his discretion, under his own judgment, and upon his own responsibility, the acts done in the appropriate exercise of that authority, are binding as to the subject-matter. ”

“ Moreover, we wish to make it clear that we are not necessarily standing for a division of power. There may be separately constituted departments of government, one primarily for administration, the other primarily for legislation, yet a concentration of authority in one of them, as in the case under the cabinet system of Europe. The gentlemen of the opposition are advocating not only a concentration of power, but a fusion of functions as well. Their commission is at once the executive cabinet and the legislative body. ”

“ The second class of limitations upon official power provided in our constitution prescribe and maintain the distribution of power to the different departments of government and the limitations upon the officers invested with authority in each department. This distribution follows the natural and logical lines of the distinction between the different kinds of power—legislative, executive, and judicial. ”

“ A recent case has served to test the application of its IVth Article, which provides that neither party shall be bound to deliver up its own citizens, but that the executive authority of each shall have the power to deliver them up if in its discretion it be deemed proper to do so. ”

“ The instrument of Government provided that supreme executive authority should be vested in one person—the President, or his deputy for the time being, in conjunction with the Commons in Parliament assembled. The functions of the Lords had long since been abrogated. The President, or his deputy, in the circumstances stated, with the assistance of the members of the Committee or Council of State, had the fullest powers as the executive, and, in effect, presided over the destinies of the nation. ”

“ But a body of councillors, are never without some other authority, either of judicature, or of immediate administration: as in a monarchy, they represent the monarch, in delivering his commands to the public ministers: in a democracy, the council, or senate propounds the result of their deliberations to the people, as a council; but when 232they appoint judges, or hear causes, or give audience to ambassadors, it is in the quality of a minister of the people: and in an aristocracy, the council of state is the sovereign assembly itself; and gives counsel to none but themselves. ”

“ You have a form of Government which in many points is purely democratic, and you must take it with the incidents which naturally adhere to it, and one of these incidents is publicity of deliberation. The Cabinet is the authority which decides in the first instance, and it decides in secret, and it rightly maintains its secrecy to the utmost, but the authority to which you must appeal from the Cabinet is the people, and their deliberations are conducted in the open field. ”

“ Parliament has, no doubt, in many cases, delegated to the administrative organs of the state a final authority to grant special powers to local bodies or private companies, or at least to sanction their use ”

“ Government under the representative principle includes not merely legislation by the chosen representatives of the people, but the practical conduct of the executive department and its administrative branches by officials selected or nominated by representatives of the people. ”

“ A member of the delegation cannot exercise his duties when the Power which appointed him, or of which he is a national, is one of the parties. The members of the delegation are to conclude all matters submitted to them, even if the period for which they have been appointed Judges has expired. ”

“ In every delegation made by an individual for himself, he adheres closely to this opinion. And though universal experience concurs with universal opinion, both are violated by nations. It is because governmeats are always formed by those who expect delegations. ”

“ So too the officers of the state derive their commission from the people, albeit the king, in conformity with law, decides the detail of their appoint ment, together with the other necessary arrangements of the executive government. Once establish the principle, and the consequences are easy to draw. ”

“ Thus, instead of a council with restricted powers and divided authority, we have a few men assuming positions of genuine responsibility, as regards both the originating and enforcing of laws. My colleagues will show that such a concentration of powers in one small body is necessary and desirable, both from the legislative and administrative point of view. ”

“ The Federal government, as the representative and embodiment of the delegated powers, has no disposition, and, within itself or in its organization, no provisions to prevent the delegated from encroaching on the powers reserved to the several States. ”

“ If we consider the genius of our institutions, it is clear that the pretensions of the House of Delegates cannot be sustained. For, throughout the whole structure of the government, concurrence of the several branches of each department is required to give effect to its operations. ”

“ The authority of our Government here was more necessary than one would be led to suppose, from the state of society which exists among these people. The chiefs are respected by the common men as the oldest, the most experienced, and the richest among the inhabitants; they are consulted when differences occur, and their decision is usually respected; but they still want, to give force to their authority, an act of appointment from our Government. ”