The Constitution and the Delegation of Congressional Power. By Sotirios A. Barber. (Chicago: University of Chicago Press, 1975. Pp. 153. $12.00.)

Abstract

The thesis of this revised and expanded dissertation is that Congress has a duty to perform the function vested in it by the Constitution to make clear policy choices and that it may not repose this power elsewhere. The duty is derived from the expectation in the constituent act of establishing government that neither the government nor any of its parts should change the constitutional arrangement of offices and (p. 37). Only this expectation provides an adequate conceptual foundation for the rule that Congress may not its law-making function to others. All other justifications for the nondelegation rule are inadequate, such as the separation of powers, the common law of agency, due process and the rule of law, the representative principle, or republicanism, although each of these traditional justifications may support some aspect of the rule of nondelegation. From the pristine dictum it follows that Congress may not abdicate the powers vested in it because to do so would violate the simple expectation that it would not do so. Whether Congress may delegate power in degrees of permissiveness short of abdication depends upon the way in which the delegation is framed. Since Congress has a constitutional duty to make clear policy choices among salient alternatives, any delegation that constitutes a failure to choose is invalid. Thus, if the Gulf of Tonkin Resolution is regarded as a delegation, it must be held invalid because Congress did not make a choice among the four available policy alternatives-war with China, war the territory of North Vietnam, limited engagement in South Vietnam, or withdrawal-but evaded its responsibility, and left it up to President Johnson to decide (p. 111). If the Gulf of Tonkin Resolution is seen, however, as an act approving steps thought to be within the preroga-