Legislative delegation

“ 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. ”

“ The other functions that are usually associated with the highest authority in a community, such as the control of general administration, jurisdiction, finance, cultus and coinage, may more easily be delegated. If the delegation is temporary, there is no division of sovereign power; if perpetual, there is such a division unless the legislative power be thought of as capable of recalling the mandate. We have already seen to what a large extent the people had delegated its powers to the Princeps, and we have also seen that this delegation was, in fact though not in theory, perpetual. ”

“ But some gentlemen object further, and say the delegation of these great powers will destroy the state legislatures; but I trust this never can take place, for the general government depends on the state legislatures for its very existence. The President is to be chosen by electors under the regulation of the state legislature; the Senate is to be chosen by the state legislatures; and the representative body by the people, under like regulations of the legislative body in the different states. ”

“ Such delegations of power permit the legislature to declare the end sought and leave technical matters in the hands of experts, [29] or to leave to others the task of devising specific rules to carry out congressional policy in a variety of factual situations. [30] Where, as is often the case, even major policy decisions may turn on specialized knowledge and expertise beyond legislative ken, delegation of rulemaking power may be made under broad standards to a body chosen for familiarity with the subject matter to be regulated. ”

“ Chief Justice Marshall overruled the objection that this constituted an invalid delegation of legislative power, saying: "It will not be contended, that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. ”

“ If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. ”

“ In creating such an administrative agency, the Legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. ”

“ We may safely admit, however, that the house of representatives is not federative, and yet contend, with perfect security, that the legislative department is so. Congress consists of the house of representatives and senate. Neither is a complete legislature, in itself, and neither can pass any law without the concurrence of the other. And, as the senate is the peculiar representative of the States, no act of legislation whatever can be performed, without the consent of the States. ”

“ And in the mean time those picked and chosen ones will elect the state officers whom the legislature has the power to name, will have the machinery to distribute all state patronage and to make the legislative committees safe for the big measures. ”

“ To the Chamber of Deputies is accorded the right to initiate all measures relating to taxes, the organization of the forces on land and on sea, the revision of the constitution, the prorogation or adjournment of legislative sessions, the discussion of proposals made by the President, and the bringing of actions against members of the executive department. Initiative in respect to all other matters may be taken by any member of either branch of Congress or by the President of the republic. ”

“ At first Congress was to appoint the governor, secretary, judges and militia generals, and the governor and judges were, until the organization of a legislature, to make laws subject to the veto of Congress. When the population reached 5000 free male adult inhabitants the Territory was to have an assembly of its own, to consist of the governor, a legislative council of five, selected by Congress from ten nominations by the lower house, and a lower House of Representatives of one delegate for every 500 free male inhabitants. ”

“ It should be borne in mind that our system of republican government differs from other representative governments in the practical and effective separation of powers. In England and in France the legislators, that is the delegates or representatives elected by the people, appoint and control all executive and administrative officers and carry on the executive and administrative branches of govern [Pg 228] ment. There the legislative and executive powers are practically united in the same body. Under our system the legislators do not elect or appoint executive officers. ”

“ 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. ”

“ The function of the representative body, needed under a system of direct legislation, is substantially that of a legislative and administrative council or commission. It should be an experienced body of legal, administrative, and financial experts, comparatively limited in numbers, and selected in a manner to make them solicitous of the interests of the whole state. They should be elected, consequently, from comparatively large districts, or, if possible, by the electorate of the whole state under some system of cumulative voting. ”

“ It maintains peculiar relations to Congress, to whom the Constitution has granted the power of exercising exclusive legislation over the seat of Government. Our fellow-citizens residing in the District, whose interests are thus confided to the special guardianship of Congress, exceed in number the population of several of our Territories, and no just reason is perceived why a Delegate of their choice should not be admitted to a seat in the House of Representatives. ”

“ 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 constitutionality of clothing an administrative body with large regulative power by act of Congress, was, of course, essential to the administration's plan. It was urged that there was one exception to the general rule that power delegated to Congress to legislate under the Constitution could not be further delegated. "There may be such delegation where the purpose in the original conferring of the power can be subserved only by its delegation to an agent. ”

“ The most natural substitute for an assembly of the whole, is a delegation of power, from the many, to a few of the most wise and virtuous. In the first place then establish rules for the choice of representatives: agree upon the number of persons who shall have the privilege of choosing one. As the representative assembly should be an exact portrait, in miniature, of the people at large, as it should think, feel, reason and act like them, great care should be taken in the formation of it, to prevent unfair, partial and corrupt elections. ”

“ Every measure of the Assembly must secure the approval of the Legislative Council, the members of which were appointed for life by the governor-general, and added to this the measure must then receive the royal assent before it became operative. ”

“ The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. ”

“ My objection to the Resolve, or my reason why it should be repealed, (if it is one) is, that a delegation by the Legislature to the Electors appointed by the Citizens in their individual capacity for the Election of President and Vice President, to fill up vacancies in their own number, by death or resignation, is a dangerous power, and tends to the establishing a dangerous Precedent ”

“ As cabinet officer he should not be there without your hearty, cheerful consent, 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 money 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. ”

“ For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such a manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the year. ”

“ No State shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit receives any salary, fees or emolument of any kind.
Each State shall maintain its own delegates in a meeting of the States, and while they act as members of the committee of the States. ”

“ The report places many important portions of the executive power in a council of state, to consist of one delegate from each state to be named annually by the delegates of that state.
The confederation empowers congress to appoint a committee to sit in the recess of congress, to be denominated "a committee of the states," and to consist of one delegate from each state, to exercise such powers as congress might from time to time vest them with. ”

“ It has been impossible to carry out the programme of the Constitution; and, without careful reform, the national legislature will even more dangerously approach the perilous model of a mass meeting. There are several ways in which Congress can be so integrated as to impart to its proceedings system and party responsibility. That may be done by entrusting the preparation and initiation of legislation to a single committee in each house, composed of the leading men of the majority in that house. ”

“ The Assembly has no legal right to act by itself and claim to represent the people in so doing. The people are not bound by any act of their representatives till it hath received the approbation of the other branches of the legislature. Delegates so appointed are, at best, but delegates of delegates, but representatives of representatives. ”

“ Under our practice the preliminary act of framing a State constitution is uniformly performed through the instrumentality of a convention of delegates chosen by the people themselves. That convention is now about to be elected by you under the call of the Territorial legislature, created and still recognized by the authority of Congress and clothed by it, in the comprehensive language of the organic law, with full power to make such an enactment. ”

“ A Delegate has not even the unit of political power—a vote on any measure; he can therefore form no combination to further friendly legislation in the interest of his Territory. The Delegates from the different Territories, however, were regarded as quite an influential body of men, and were usually able, by scattering through the House, by use of personal persuasion, by attendance before committees and receiving favorable reports, to get a part, at least, of what they desired for their Territories. ”