Delegation Of Legislative Power Research Articles

Delegation of Legislative Power between Levels of Government in Nigeria and Kenya

Abstract The concept of delegated legislation has always been examined between three arms of government. However, the concept has not been seriously addressed between levels of government. This study therefore seeks to examine the concept of delegated legislation between levels of government in Nigeria and Kenya. The study finds that in both Nigeria and Kenya, the concept of delegated legislation within levels of government has not been seriously explored and that in both countries, there is ethnic tension and the need for devolution of power. The study therefore argues that delegated legislation between levels of government if carefully managed may be used to achieve devolution of power and douse ethnic tension in Nigeria and Kenya. The study concludes that Nigeria and Kenya should explore the concept of delegated legislation at levels of government.

Rozporządzenia z mocą ustawy – modele, teoria i praktyka w polskim systemie parlamentarno-gabinetowym w latach 1921–1926 oraz po 1989 r.

Acts with the Force of Statute – Models, Theory, and Practice in the Polish Parliamentary-Cabinet System in the Years 1921–1926 and after 1989 The centenary of the enactment of the March Constitution in Poland prompts questions about the constituent parts of the achievements of Polish constitutionalism of that period. The authors have found the issue of the sources of law worthy of attention, and among the latter, especially those acts that are situated between the classically conceived competences of the authorities, i.e., acts with the force of statute issued by the organs of executive authority. These acts, formally absent from the system of sources of law of the March Constitution until the enactment of the August amendment of 1926, appeared in the practice of the Second Republic at the time of the budgetary crisis in 1924, in the form of acts issued “by the President of the Republic on the basis of resolutions of the Council of Ministers”. These “special kinds of autonomous regulations” [Z. Cybichowski] provoked intensive discussions regarding both the admissibility of such delegation of legislative power, as well as the legal essence and constitutionality of aforementioned regulations. The authors would like to take a closer look at the institution of legal acts with the force of statutes as sources functioning in the era of democratic constitutional solutions establishing a parliamentary-cabinet system [i.e., in the years 1921–1926 and after 1989], without neglecting the historical and comparative context in which the examined institution evolved.

Delegation at the Founding

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless of the institution from which it issued. Indeed, administrative rulemaking was so routine throughout the Anglo-American world that it would have been shocking if the Constitution had transformed the workaday business of administrative governance. Practice in the new regime quickly showed that the Founders had done no such thing. The early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era, with little if any guidance to direct them. Yet the people who drafted and debated the Constitution virtually never raised even policy objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

A shock to the system: sectoral bargaining under threat in Ireland

In Náisiúnta Leictreach Contraitheoir Éireann v Labour Court, the Irish High Court struck down as unconstitutional a key component of Ireland’s industrial relations system for the third time in recent years. The Court determined that the extension of collective agreements erga omnes breaches the constitutional prohibition on the delegation of legislative power. This note explains the background to that decision and critiques the Court’s reasoning from the perspective of a ‘labour constitution’ model of labour law, and in light of international and European legal principles. The decision appears to misunderstand the place of collective bargaining at a sectoral level within European internal market and competition law. It also seems to rule out any form of meaningful participation by workers, employers and their representatives in collective bargaining on a sectoral basis or through dedicated industrial relations machinery. According to the vision of Irish constitutional law put forward in this case, decisions relating to the administration of production and economic life more broadly must be reserved to the legislature. This is a significant loss for the autonomy of the social partners and represents an impoverished understanding of democracy and legitimacy within the constitutional order, and risks leaving Ireland even more of an outlier in Europe than it already is on the issue of sectoral collective bargaining.

A Two Tiered and Categorical Approach to the Nondelegation Doctrine

This essay was written for a book of essays on the nondelegation doctrine to be published by the American Enterprise Institute. Building upon an earlier article, I explore the original meaning of the Constitution’s prohibition on the delegation of legislative power to the executive. I make two main claims. First, I argue that there is a two tiered nondelegation doctrine, with a strict tier extending to certain areas and a lenient tier extending to other areas. Although the strict tier imposes very substantial restrictions on delegation, the lenient tier does not. The lenient tier covers legislation in various areas, including spending laws, the territories, foreign commerce, and foreign and military affairs. The most important area that is covered by the strict tier is domestic law regulating private rights. Second, I argue that the strict tier imposes a categorical prohibition on the delegation of policymaking discretion to the executive. Under my approach, the executive does not exercise policymaking discretion when it undertakes law interpretation or genuine fact finding. Such activities may involve some uncertainty, but so long as the executive is genuinely seeking the meaning of the statute or finding facts, it is not exercising policymaking discretion. Unlike other strict approaches to the nondelegation doctrine that prohibit the executive from being given “too much” policymaking discretion, my approach categorically forbids the executive from being given any policymaking discretion in the areas governed by the strict tier. Thus, my approach avoids criticisms, like that of Justice Scalia, that argue that no distinction in kind can be drawn between statutes that permissibly and impermissibly delegate policymaking discretion.

A Rebuttal to 'Delegation at the Founding'

In their recent article “Delegation at the Founding,” Julian Mortenson and Nicholas Bagley take aim at modern originalists who argue on historical grounds for reviving the long-dormant Nondelegation Doctrine—the constitutional principle that Congress may not delegate authority so broad as to be “legislative” in nature. Mortenson and Bagley reject such originalist arguments, asserting that, in fact, the Nondelegation Doctrine has no basis in the Constitution as originally understood. On the contrary, the two authors claim, “the Constitution at the Founding contained no ... prohibition on delegations of legislative power” so long as “the legislature [did] not irrevocably transfer ... its ultimate authority,” and that any “rulemaking pursuant to statutory authorization,” no matter how broad the authorization, “was an exercise of executive Power.” As one of the less illustrious targets of Mortenson and Bagley’s critique (and of several other recent articles taking similar positions), I beg to differ on both points. In a prior article, Nondelegation, 12 NYU J.L. & Liberty 718 (2019), I argued that, as a matter of original meaning, the Nondelegation Doctrine has a firm constitutional foundation; congressional “grants of rulemaking power … very often constitute delegations of legislative authority, and such delegations violate the Constitution.” Despite one hundred ten pages of their best efforts, Mortenson and Bagley fail to call these conclusions into doubt; if anything, their recent paper should leave readers even more convinced of the Nondelegation Doctrine’s constitutional bona fides. Here, I explain why—and in the process, respond to other recent scholarship that has similarly questioned the historical case for nondelegation.

A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers

Administrative law is fundamentally a regime of soft power. Congress, the President, administrative agencies, civil servants, and the courts all operate within a broad consensus for rational, good-faith decisionmaking. Congress grants agencies discretion, and courts and civil servants defer to agencies’ political leadership based largely on the expectation that the latter are seeking to honor statutes’ purposes. That expectation of prudential restraint also allays concerns about delegations of legislative power. When the executive systematically disregards that expectation and seeks single-mindedly to maximize achievement of its policy objectives, deference’s justification breaks down. Across agencies, the Trump administration has disregarded the assumptions on which administrative law’s soft power consensus depends. Its waivers allowing states to deny Medicaid to otherwise eligible low-income people unable to find employment exemplifies this disregard. Exploiting a sweeping delegation of authority to test new ways to achieve Medicaid’s goal of providing health care coverage, this administration has instead sought to achieve very different goals, from legislation that Congress has rejected. The waiver applications themselves estimate substantial increases in the numbers of uninsured people. Ignoring the administration’s disregard of the longstanding administrative law consensus could deter future Congresses from valuable delegations of discretion. Permanently abandoning the deferential soft-power model would seriously undermine future governance. Instead, courts and civil servants should treat this period as a hiatus in consensus for good-faith decisionmaking. Courts should suspend deference and other aspects of soft-power jurisprudence. And civil servants should comply with political officials’ lawful directions but should remain steadfastly truthful in their words and actions.

The Broader the Power, the Narrower the Power

Many of us have been warning public service lawyers for many years that taking an absurdly broad power because you do not have the foggiest idea what you may want to do with it is actually a good way of ensuring that you will not be able to achieve your objectives because the wider the power, the more rigorously the courts will apply the presumption against the delegation of legislative power. The decision of the Supreme Court in R (on the application of the Public Law Project) v Lord Chancellor [2016] UKSC 39 provides helpful judicial authority for this proposition, particularly in relation to broad Henry VIII powers designed to allow the Executive to rewrite the primary legislative text at its own leisure and without the level of scrutiny attaching to Bills. The appeal concerned the lawfulness of a proposal by the Lord Chancellor in September 2013 to introduce a residence test for civil legal aid by amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, by means of delegated legislation, in the form of a statutory instrument.

Quem Tem Medo Da Delegaaao Legislativa? (Who's Afraid of the Delegation of Legislative Powers?)

Portuguese Abstract: A delegacao legislativa do Congresso para orgaos do Executivo sempre foi central na modernizacao do capitalismo brasileiro. Entretanto, sempre houve uma grande divergencia a respeito do aumento de poder desses entes nao-majoritarios. Depois de anos de governo autoritario, a doutrina que sustenta ser vedada a delegacao ganhou forca com a nova Constituicao democratica de 1988. O Direito Publico brasileiro experimentou uma enorme transformacao com a Reforma do Estado dos anos 1990, que realizou privatizacoes e criou agencias reguladoras. Esse novo ciclo de modernizacao mais uma vez radicalizou a tensao entre uma concepcao liberal de separacao dos poderes e o agigantamento da burocracia que cuida da regulacao economica e social. Mas nada disso e novo. A chave para a compreensao desse importante debate brasileiro pode ser encontrada no debate analogo em torno da Constituicao de 1946. Revisitar esse debate pode nos despertar a perplexidade de constatar que 1988, nesse aspecto, repetiu 1946.English Abstract: The delegation by the legislature of some of its law making authority to administrative agencies has always been central to the modernization of Brazilian capitalism. There has always been, nevertheless, broad disagreement over this empowerment of non-majoritarian institutions. After years of authoritarian rule, the non-delegation doctrine became stronger with the new democratic Constitution of 1988. Brazilian Public Law suffered a dramatic change in the 1990s, when a State Reform programme implemented privatization and created independent regulatory agencies. This new modernization cycle once more radicalized the tension between a liberal conception of separation of powers and the increasing regulatory law. But this is not a new issue. Some important findings about this contemporary legal dilemma may be best captured by means of an analogous debate on the Constitution of 1946. We may be surprised to learn that 1988 has reproduced 1946's dilemmas.

A Study on Relation between the Definitude of Law Principle and the Prohibition of against Unlawfully Broad Delegation of Legislative Powers

A Study on Relation between the Definitude of Law Principle and the Prohibition of against Unlawfully Broad Delegation of Legislative Powers

Scrutinising parliament's scrutiny of delegated legislative power

ABSTRACTDelegation of legislative power to the Executive occupies a unique place within the constitutional division of power. As a matter of necessity, efficiency, responsiveness, and a desire for increased participation from industry, delegation of legislative power is common but surprisingly under-theorised and under-studied. For decades in Australia it has been the domain of the Parliament to determine the appropriate exercise and level of scrutiny for delegated legislative power. But the constitutional landscape may be changing. In the 2012 decision Williams v Commonwealth (No 1), the Australian High Court indicated a greater willingness to scrutinise more robustly the performance of Parliament's supervisory functions. Against the background of the Court's new interest in responsible government, we argue that the current parliamentary practice of review of the exercise of delegated power is unable to achieve robust accountability. Informed by the High Court's jurisprudence in Williams (No 1) and the theories of responsible government and separation of powers, we suggest reforms that will ensure Parliament is meeting its constitutional duty of calling the Executive to account to it and, ultimately, the people.

Normatywne uwarunkowania realizowania kompetencji prawodawczych przez organy jednostek samorządu terytorialnego

W przedstawionym opracowaniu podjęto próbę analizy normatywnych determinant realizowania władztwa administracyjnego organów jednostek samorządu terytorialnego w ramach ich kompetencji prawodawczych. Przedstawiono wpływ normatywnej kategorii samodzielności jednostek samorządu terytorialnego na sposób realizowania kompetencji prawodawczych przez organy tych jednostek. Wśród normatywnych determinant realizowania kompetencji prawodawczych zwrócono uwagę na charakter norm kompetencyjnych i norm zadaniowych, a także wzajemne relacje między nimi. Zasygnalizowano problematykę metod wykładni tych norm. Dokonano także oceny wpływu norm, które determinują formalny aspekt korzystania z upoważnienia ustawowego, na sposób korzystania z kompetencji prawodawczych. Rozważania osadzono na tle poglądów prezentowanych w doktrynie prawa i zilustrowano aktualnymi przykładami analizowanymi w orzecznictwie.

Case C-133/06, European Parliament v. Council (Delegation of legislative power), judgment of the Grand Chamber of 6 May 2008

Case C-133/06, <i>European Parliament</i> v. <i>Council</i> (Delegation of legislative power), judgment of the Grand Chamber of 6 May 2008

Nondelegation: A Post-Mortem

In an earlier article, Interring the Nondelegation Doctrine,' we advanced the following account of the constitutional law bearing on delegation of federal legislative power. A statutory grant of authority the executive branch or other agents can never a delegation of legislative power. Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. The standard nondelegation doctrine, which holds that statutory grants of authority amount to or effect a delegation of legislative power if they are too broad or confer excessive discretion, is no more than a vague and ultimately uncashable metaphor. As it turns out, the standard nondelegation doctrine has no real pedigree in constitutional text and structure, in originalist understandings, or in judicial precedent; nor can plausible arguments from democratic theory or social welfare be marshaled support it. Larry Alexander and Saikrishna Prakash have written a response that criticizes our account.2 (Although Alexander and Prakash criticize our view, they are noticeably ambivalent about the conventional doctrine.' As we shall see, their arguments commit them defending a different, radically restrictive account of delegation, one in which any issuance of rules and regulations by the executive branch represents an unconstitutional exercise of legislative power.) Alexander and Prakash make three principal points. First, focusing on one implication of our account -that a delegation of legislative power would occur if federal legislators ceded their de jure legislative powers, such as voting rights, nonlegislators-they say that our account elevates form over substance by permitting equivalent results be produced

Comitology: A Comparative Analysis of the Separation and Delegation of Legislative Powers

Comitology: A Comparative Analysis of the Separation and Delegation of Legislative Powers

Legislator Uncertainty, Legislative Control, and the Delegation of Legislative Power

On May 2, 1878, the House Commerce Committee favorably reported a bill regulate interstate commerce and to prohibit unjust discrimination by common carriers. Known as the Reagan bill, after the chairman, John Reagan, of Texas, H.R. 3547 outlawed rebates and other forms of discrimination and included a restrictive longand short-haul clause. The bill did not establish a federal commission to enforce the law, however, providing only that aggrieved shippers could bring suit in the federal courts and, if successful, could recover triple damages. To supply additional enforcement incentives railroads were to be fined a minimum of $1,000 for each offense, this amount to be divided between the government and the informer. After lengthy debate and the addition of a provision outlawing pools (agreements to split traffic or revenue) the Reagan bill passed the Democratic House, only to disappear without a trace in the Republican Senate.l Senate inaction stalled the regulatory drive until 1885. In that year the Republican Senate adopted a bill reported by a select committee chaired by

Constitutional Law. Delegation of Legislative Power. State Legislature May Authorize Administrative Official to Adopt Existing or Prospective Laws of Other States or Federal Government Pursuant to Reciprocal Administrative Arrangements

Constitutional Law. Delegation of Legislative Power. State Legislature May Authorize Administrative Official to Adopt Existing or Prospective Laws of Other States or Federal Government Pursuant to Reciprocal Administrative Arrangements

Constitutional Law: Delegation of Legislative Power: Use of State Agency Classification as Basis for Federal Law

Constitutional Law: Delegation of Legislative Power: Use of State Agency Classification as Basis for Federal Law

Delegation of Legislative Power in India

Delegation of Legislative Power in India Get access C. H. Alexandrowicz-Alexander C. H. Alexandrowicz-Alexander *Research Professor, Department of Law, Madras University Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 3, Issue 1, Winter 1954, Pages 72–79, https://doi.org/10.2307/837126 Published: 01 January 1954

Permissible Scope of Delegation of Legislative Power to an Administrative Agency

Permissible Scope of Delegation of Legislative Power to an Administrative Agency