Considering a duty to delegate in designing regulatory legislation

Abstract

ABSTRACTDelegation of rulemaking powers from the legislative branch to regulatory agencies within the executive branch is often explained and legitimised as a means for dealing with complex technical issues, overcoming information asymmetries, or making credible commitments. By focusing on media and communications regulation as a test case for delegating policy-making powers from the legislator to a non-majoritarian body, this Article suggests that such delegation should be understood not only as a permissible act but also as a democratic necessity. What we observe and problematise in this Article is the emerging populist alternative to the traditional division of labour between primary and secondary legislation. We call this model ‘Hollow Delegation,’ in which primary legislation does not limit itself to prescribing the regulatory aims or policy outlines but also stipulates the specifics and details of regulatory duties in a continuous manner, which leaves the delegated regulator with little or no room to exercise its delegated powers. After identifying the practical and democratic problems of this model, the Article suggests analytical tools and guidelines for designing the regulatory division of labour between the parliamentary–representative and the administrative–delegative facets of the democratic regulatory state.