Delegations Of Authority Research Articles

The National Security Consequences of the Major Questions Doctrine

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms. In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national- security-related conflicts—wars of territorial conquest, terrorism, or nuclear proliferation—increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences. The MQD raises serious problems for foreign affairs and national security. If the MQD is applied to domestic, but not foreign, delegations, then the executive branch will have an incentive to use broad foreign affairs delegations to accomplish domestic policy objectives in order to evade the safeguards and limits that attend domestic administrative action. At the same time, judges will have to police the porous boundary between “foreign” and “domestic,” with especially high error costs because wrong decisions will affect national security. If the MQD is applied to economic delegations that touch foreign commerce, the most likely consequence is that judges—particularly lower court judges—will be put in the position of second-guessing executive branch decisionmaking on precisely those questions—economic foreign policy questions of deep economic and political significance—on which the political branches enjoy both constitutional primacy and institutional expertise. This result is troubling; judges lack the knowledge and training to make effective decisions bearing on foreign policy, and putting them in the position to do so contravenes the norms of our legal system.

The Surveillance State and the Surveillance Private Sector: Pathways to Undercover Policing in France and the United States

As a form of social control, undercover tactics played an important state-building role during the Nineteenth Century, in both the United States and France. Yet undercover policing played this role very differently in France than in the US, which made do with a less developed surveillance capacity at all levels of government. The instability of successive French regimes encouraged French political authorities to expand their use of infiltration and to privilege high policing purposes of undercover tactics over the crime-fighting purposes favored by local elites. And while nineteenth-century France, like the United States, often governed through delegations of authority to local elites, French authorities jealously guarded undercover tactics as their exclusive prerogative. As a result, undercover tactics became a marginal crime-fighting tactic in nineteenth century France, becoming identified primarily with the state's surveillance of its political opponents. In the United States, by contrast, the private sector was able to deploy undercover tactics against suspected criminals, organized labor, political radicals, and purveyors of vice. Though the private sector readily accepted delegations from the public sector, the direction of influence also ran in the opposite direction, from the private sector to the state, as American private sector used undercover tactics to replace, bypass, and harness state institutions in ways that their French counterparts could not. In the United States, the private sector's use of undercover tactics came to shape public policing, as prominent detectives entered government and brought their tactics with them, and as Progressive era reformers took up the undercover tactics pioneered by private detectives, modeled them for the state through public-private partnership, and used them to set the anti-corruption, anti-radical, and anti-vice enforcement agenda of government. If French undercover tactics helped to build the French state from the inside out, by consolidating the state's hold over territory and attempting to control disorder and dissent, American undercover tactics became a vector of private sector influence that helped build the state from the outside in by shaping both investigative means and ends at all levels of government.

The Case for <i>Chevron</i> Deference to Immigration Adjudications

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.” The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and specific delegations of authority to the Attorney General, the expertise of the agency which has honed its interpretive enterprise through adjudicating tens of thousands of cases annually, and the ultimate political accountability of the agency head in immigration adjudication. For these reasons, the Supreme Court has applied Chevron deference to immigration adjudications since the very foundation of that framework. Although they advance an interesting contrarian thesis, the Professors ultimately provide no sound basis for retreating from four decades of established jurisprudence.

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.

Delegation and Time

Most concerns about delegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions made by such agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic-deficit concerns. The same is true of the judicially created non-delegation canons, such as the major questions doctrine and other clear-statement rules. This Article addresses a different, under-explored dimension of the delegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that was wholly unanticipated by the enacting Congress or could no longer receive legislative support. This problem has taken on added significance in the current era of congressional inaction. To address this distinct, temporal problem of delegation, we suggest that Congress revive the practice of regular reauthorization of statutes that govern federal regulatory action. In some circumstances, this will require Congress to consider adding reauthorization incentives, such as sun-setting provisions. In other regulatory contexts, Congress may well decide the costs of mandatory reauthorization outweigh the benefits. Nevertheless, we argue that Congress should more regularly use this longstanding legislative tool to mitigate the democratic deficits that accompany broad delegations of lawmaking authority to federal agencies and spur more regular legislative engagement with federal regulatory policy. A return to reauthorization would also strengthen the partnership between Congress and the administrative state as well as mitigate some of the major concerns that have been raised in recent years regarding Chevron deference.

Courts Strike Down Trump’s ‘Refusal of Care’ Conscience Rule

Courts Strike Down Trump’s ‘Refusal of Care’ Conscience Rule

Copyright Rulemaking: Past as Prologue

In deciding what rule-making authority the Copyright Office should have, it may be helpful to take a close and careful look at how the Office has historically exercised its rule-making powers. This article undertakes this task and makes a number of observations: (1) the Office’s rule-making activity increased dramatically after passage of the 1976 Act; (2) the rules issued fall into a number of identifiable categories; (3) by far the largest category consists of rules administering statutory licenses set forth in the Act; and (4) the smallest category consists of precisely the kinds of substantive rules that some commentators propose the Copyright Office issue in the future. While Congress may, of course, change the balance of copyright regulation in the future, this Article argues that any future delegations of substantive rule-making authority must take into account the fact that the Office’s regulatory efforts to date have largely involved a very particular and unique kind of rule-making, one that focuses on administering legislative compromises between large industries rather than on furthering specific copyright policies. Care must be taken to ensure that this unusual regulatory perspective does not unduly influence or affect future substantive rule-making.

Delegation of Governor Regulation in Ensuring Utility and Justice

Delegation means delegation of authority to make Law and Regulations. Article 246 paragraph (1) of Act No. 23 of 2014 on Regional Government stipulates that “to implement the Regional Regulation or over the power of Law and Regulations, the Head of Region shall pass the Head of Region Regulation.” The words "implement" and "over the power" which contains ambiguity of command cause philosophical problem related to the validity value. It becomes a sociological problem if such delegation cannot predict the dynamics of society. Furthermore, it becomes a juridical problem due to the existence of vague norm which creates multi interpretation which could potentially miss the aim of delegation of regulation. Specifically, this article has specific aims to examine philosophically concerning the need for delegations of authority to regulate, examine and find the direction of regulation in the delegation of regulation to governor regulation in ensuring utility and justice. This is a normative legal research with literature study which employs statute, philosophy, theories, conceptual and contextual approaches. The study so that with regard to the philosophical basis, delegation of regulation to Governor Regulation is needed to formulate technical and detail norms, the urgent factor contained herein as well as brief discussion and The direction of regulation to the Governor Regulation in the Regional Government Act to implement Regional Regulation or over the power of law and regulations. Such direction is based on command from the higher law and regulations, or established based on delegation.

Delegation, Time, And Congressional Capacity: A Response To Adler And Walker

Delegation, Time, And Congressional Capacity: A Response To Adler And Walker

Public administration and the erosion of the rule of law in the United States

The failure of public administration theorists, researchers, reformers, and practitioners to make the rule of law the foundation of U.S. public administration has contributed to an erosion of constitutionality and legality in the national administration. Prominent contemporary threats to the rule of law include standardless delegations of legislative authority to administrative agencies, theChevrondoctrine and related judicial deference, the use of administrative guidance documents in place of rules, presidential legislation by executive order, aggrandizement through unitary executive branch theory, and policymaking by concerted nonenforcement of statutory requirements. Together, these threats contribute to massive constitutional distortion. This raises questions of whether it is time for public administration theorists, researchers, and practitioners to consider a ‘rule of law restoration’ initiative in the U.S. and use the American case examined here as a potential basis for considering the role of the rule of law in contemporary public administration worldwide.

The President in His Labyrinth: Checks and Balances in the New Pan-American Presidentialism

This dissertation presents a theory of the separation of powers centered on the President’s “power to persuade.” To meet the imperial public expectations placed on the office in the modern age, the President will reliably try to supplement his limited formal powers by convincing others to support his agenda, the people, party allies, and courts being the most important. The President’s techniques of persuasion fall into three regular categories. First, there is “going public,” or popular leadership, where the President turns the force of popular majorities into a tool for shaping policy or legislative outcomes. Second is executive law-making, whereby the President presses on party alliances to shape legislative content: drafting legislative proposals, mediating congressional debates, soliciting or taking advantage of broad delegations of authority. Finally, there is emergency management, whereby the President invokes security threats, real or contrived, to press his natural advantages of speed and decisiveness and claim exclusive power over governance. In three case studies from Latin America, I illustrate these techniques and how institutions have adapted in response. Some are success stories, some are not, but all offer evocative lessons in designing solutions to problems the U.S. also confronts. First, on popular leadership, I discuss Venezuelan democracy under populist Hugo Chavez, in which institutions that could be coopted and radicalized (the courts, the legislature) were, while those that could not (opposition governorships and state and local agencies) were duplicated and circumvented by a proliferation of loyalist organizations that effectively created a shadow “parastate.” Second, I give a critical assessment of Brazil’s spin on “cabinet government,” in which the makeup of the President’s Cabinet directly mirrors party balance in the legislature, thereby heightening the risks of quid-pro-quo policymaking, but also drawing a beneficial link between policy and representative democracy. Finally, I describe Colombia’s efforts to “judicialize” war, internal rebellion, and other economic or social crises by subjecting these to judicial review by the Constitutional Court, created in 1991 with a mandate to curb a historical legacy of presidential excess. Bringing these lessons home, I discuss how the American constitutional system is designed to absorb the shocks of populism, de facto presidential legislating, and the abuse of war powers, and how to channel their beneficial tendencies and contain their negative aspects. I argue that the U.S.’ robust civil society prevents the most egregious abuses of the “bully pulpit,” but that sweeping institutional capture can happen, and that the rule of law is threatened where institutions like the EPA or the FBI are not reformed, but tarred as illegitimate and unrepresentative. Second, I treat executive-legislative cooperation in governance and increases in delegated authority as essentially unavoidable, but argue that the concentration of power ought to be met by increased mechanisms of public oversight and participation that go beyond notice-and-comment, to include citizen initiatives. Finally, I argue that the exploitation of presidential war power needs to be made accountable to strict temporal and legal limits, and that in the American constitutional system, this would be most practically achieved by a new jurisprudence abandoning the political question doctrine with regard to invocations of the commander-in-chief power, especially those unsupported by congressional authorization.

Chevron Deference and Net Neutrality

Ajit Pai’s Restoring Internet Freedom Order (“RIFO”) answers a question put to the Federal Communications Commission (“FCC”) on how best to regulate the Internet. What this means is that there was a gap in the statute in how to regulate the Internet and RIFO presents a defensible choice on how that regulation should occur. The guiding Supreme Court precedent on administrative decision making – Chevron – explains that “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.” If Chevron applies, and it’s no doubt that Chevron applies here, then the question becomes (1) whether Congress has directly spoken to the precise question at issue; and (2) if not, whether the agency’s answer is based on a permissible construction of the statute. The fact of the matter is that administrative agencies are given wide deference under Chevron. There, the Supreme Court said “[w]hen a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail.” This deference is tough to overcome. A recent study found that courts upheld agency decisions 77.4% of the time when Chevron deference was applied. The same deference that led the D.C. Circuit to uphold OIO would also likely mean that RIFO will likewise be upheld. Ironically, this means that any decision that overturned RIFO would almost certainly be a reinterpretation of Chevron that would re-open the OIO to new scrutiny.

Las competencias normativas de las autoridades administrativas en materia de contratación estatal en Perú

La ley peruana ha reconocido expresamente competencias normativas a las entidades del Poder Ejecutivo, por lo que, en ejercicio de facultad reglamentaria, diversos actores públicos presentan un papel preponderante en la creación de las fuentes del ordenamiento jurídico en materia de contratación estatal. Sin embargo, el hecho de que las competencias se encuentren delimitadas positivamente no evita la aparición de distorsiones en el sistema de fuentes, ya sea porque las entidades públicas exceden sus facultades o porque equivocadamente se reconocen como normas a instrumentos emitidos por estas que no califican como tales. Bajo este contexto, el presente artículo tiene como propósito identificar a aquellas entidades que hacen ejercicio de potestad reglamentaria, así como los instrumentos normativos que crean y su relación con el resto de fuentes jurídicas que regulan la contratación estatal, para finalmente analizar, en los hechos, las distorsiones antes referidas.

Due Process and Delegation: Due Substancee and Undone Process in the Administrative State

Due process as a notion of basic fairness has deep roots and broad intuitive appeal. It is a guarantee, stretching back at least to Magna Carta, that government’s most feared impositions on those within its reach — using coercive powers to take away our lives, our liberty, or our property — can only be accomplished through processes that have qualities of regularity and impartiality under rules adopted through mechanisms that historically carried the hallmarks of legitimacy, generality, and neutrality. The same instincts that underlie due process guarantees also inform the structural protections that are the central features of our Constitution. The goal under either label is to protect liberty by regulating the way government goes about setting and applying legal rules. The intuitive appeal of the notion of “due process,” however, at times has obscured the limited reach of the core concept, which is restricted in both what it applies to and what it requires. Transformation of due process from that core to a looser constraint that can be shaped to fit particular notions of good governance has produced serious failures, both encouraging episodes of judicial adventurism that invade space reserved to electoral-representative processes (the story of “substantive due process”) and weakening protections against inappropriate exercises of official discretion. Reliance on softer notions of due process may be especially problematic in respect to questions of administrative process, which often lie outside the ambit of appropriate due process constraints. Even where due process does apply, other legal rules strongly influence the degree to which administrative processes work and frequently provide better avenues for constraining them. Addressing directly the problematic nature of many delegations of authority to administrators and of inappropriate judicial deference to administrative determinations by and large will be preferable to due process challenges to administrative action. Due process can be a complement to reinvigorated delegation constraints and reformed deference rules or a partial substitute — used to compensate for failure to properly reform those doctrines — but it is at best a “second best” option.

Delegation in our Justice-Seeking Constitution

The place of the written Constitution in our constitutional practice is defined secondarily, from outside the text, not commanded by the text. Like moral readers of our constitutional practice, originalists of all stripes have to argue from outside the text. This makes the new originalist turn to the theory of language come too early; the place of such theory is necessarily subordinate to a convincing moral account of our practice as a whole. To lament the existence of constitutional provisions that do not provide legible descriptions of encompassing states of affairs —as the new originalists implicitly do— is to badly misunderstand a morally salient element of our constitutional practice. The non-encompassing provisions of the Constitution are not incomplete, and hence failed instructions; rather they are complete, successful delegations of authority to constitutionally responsible officials. A delegatory constitutional instruction hands off responsibility and authority; in order to do that, it must be non-encompassing. This is a virtue, not a liability of the written Constitution. The purpose of our constitutional practice is justice-seeking. It aims at better aligning our institutions, policies, laws and the political community as a whole, with the requirements of justice. It aims, that is, at our making moral progress as a political community. Delegations of constitutional authority and responsibility invite the partnership of contemporary constitutional actors, in the justice-seeking enterprise, including and especially courts. Our constitutional courts are common law courts; they are, that is, reason-giving and precedent- drawn, features that make them worthy partners in that enterprise.

Administrative Law in Flux: An Opportunity for Constitutional Reassessment

Now is an auspicious time to consider questions of administrative law with flexibility and rigor. Administrative law in the United States is being contested in intense debates, which go far beyond technical discussions among specialists. Administrative law has broken out of the backwater into the American public and political eye in ways that mirror broader and deeper disputes, divisions, and confusions over the rule of law as embodied in the American Constitution. Our thesis is easy to state and difficult to elaborate. It holds that today’s administrative controversies reflect and refract more fundamental constitutional controversies; hence, they can be resolved only by reference to constitutional bedrock. We hope this paper will advance today’s American debates and help bridge America’s divides. But we also hope our ideas will find an audience among our friends in Europe, as they confront their own rule-of-law challenges. Today’s debates in the United States call to mind the Anglo-European origins of our Constitution, and they can be resolved only by reference to those origins. Administrative law in our tradition is not a mechanism for achieving political ends or constraining the size of government. It is, rather, a tool for improving government at any scale by furthering both administrative efficiency and administrative integrity. A sub-species of constitutional law, administrative law is a meta-law form: a law for governing the government, not private individuals. The ultimate ends of administrative law include ensuring fidelity to the commands of the sovereign demos, regularity in governing the demos, and the transparency to the demos of the nature and effects of the manifold activities government undertakes on its behalf. These logically interrelated aims — fidelity, regularity, transparency — are all presupposed by the idea that republican governments are accountable to their citizens. The concept of accountability serves as administrative law’s organizing principle. In this paper, we seek to elaborate and defend our thesis in ways that mimic (but do not retrace) the thinking of America’s Founders. We hope to identify legal and logical reasoning that the Founders themselves would have emphasized if they, not us, had confronted today’s unusual moment for administrative law. The paper has five parts. Part I explains how and why administrative law in the United States is in flux, noting that the intense debates on this side of the Atlantic are, at bottom, arguments over the nature and legitimacy of American constitutional government. After briefly encapsulating these debates, we review Supreme Court opinions that call for re-thinking administrative law and re-tethering it to the Constitution. In Part II we introduce our contention that today’s controversies can be resolved only by eliciting administrative law from constitutional text, structure, and tradition. To help attain this goal, we offer an overview of certain defining elements of American constitutionalism — our characteristic ideas about constitutional law, common law, and legal logic. We then employ these elements to map out seven primary “jurisprudential forms.” Part III builds on a signal advance in constitutional jurisprudence — the Supreme Court’s increasing invocation of “accountability” as a principle for structuring constitutional doctrine. Against this backdrop, we employ the jurisprudential forms of Part II to derive constitutionally grounded distinctions that can be used to define a small number of primary types of administrative proceedings. We propose these classifications as a lingua franca for administrative-law scholarship and adjudication; we claim they provide the beginnings of an answer for every difficult administrative law problem. Part IV begins with Justice Thomas’s proposal for overhauling the constitutional testing of delegations of administrative authority. We conclude that the linchpin of the Thomas position — that America’s administrative law, like our constitutional law, is a law for governing the government, not private individuals — will prove persuasive as a matter of constitutional interpretation. Next, we explore what follows. Drawing on constitutional jurisprudence, we distill seven principles for structuring a liberal reformation rooted in constitutionally derived administrative classifications. We emphasize that what might at first appear as a cry for revolution is better viewed as a call for much-needed renovations to an existing regime. Part V describes features of today’s landscape that make acrimony and misunderstanding the order of the day for administrative-law commentary, adjudication, scholarship, and reform initiatives. It concludes with an admonitory word about the implications of America’s administrative-law moment for our Supreme Court, our Congress, and our Nation.

The Banking Union: Agencies and the Lesson from the US

This paper contributes to conceptualising the Banking Union of the European Union (EU) by focusing on judicial control of Independent Agencies (IAs) in comparison with the US administrative law experience. The article explores a potential trade-off between the potential loss of democratic scrutiny and more efficient governance. IAs may indeed prove – as a result of the crisis - to be a tool around which further integration will pivot. Absent sound finances, regulatory agencies may be the most efficient instrument to achieve the desired policies.First, the paper explores the concern over the judicial and democratic control of two IAs set up by the EU Banking Union: the Supervisory Board, considered a de facto agency, within the European Central Bank (ECB), and the Single Resolution Board within the Single Resolution Mechanism.Second, the paper draws insights from the creation of a unitary market in the United States. Much like the EU since 2008, nineteenth-century United States also experienced debt crises and default. The classical study of Skowroneck (1982) shows that the US reacted with new administrative capacities and policy instruments to preserve the market. Even before the establishment of the Interstate Commerce Commission in 1887, which starts the emergence of regulatory agencies, the expansive role for administrative discretion emerged under broad delegations of Congressional authority. As Mashaw and Perry (2009) have explained by analysing the role of administrative role in American development, the Congress that generated substantial regulatory activity on the part of administrative agencies, through permissive acceptance of administrative adjudicatory and enforcement authority. Thus, a comparison between EU and US 19th century administrative law offers an important reference point for understanding the institutional allocation of power. It shows that integration also passes by stages where agencies have to enjoy a rather large amount of discretion.

The distribution of tenancies in León, c. 1200–1250: charter evidence for a history of power

In the kingdom of León, royal tenancies – delegations of authority over the royal demesne to noble agents – are thought to have been under royal control in the early twelfth century, and under noble control by the late thirteenth. This paper aims to clarify the crown's authority over tenants and tenancies in the transformative period of the early thirteenth century. It also calls attention to the unusual but invaluable historical source created by the lack of patrimonialization in tenancies during this period – a source that reveals the ad hoc responses of medieval monarchs to contemporary events. The transfer of tenancies from one magnate to another represents the active intervention of the crown, and thus reveals royal strategies and conflicts that are often unrecorded in other contemporary records. If understood as a process that reveals the dynamic of royal will, rather than a static representation of power, the distribution of tenancies can serve as a valuable adjunct to narrative and other sources in the study of relationships between the crown and its magnates.

Entrenchment Clause Analysis and the Limits of Lawmaking: Toward a Unified Delegation Doctrine

The Supreme Court’s delegation jurisprudence is incoherent. The Court scrutinizes some delegations of authority under the perversely misnamed “nondelegation” doctrine, which has upheld every statute put before it since 1935. It strikes down other delegations under a strict rule that punishes any deviation from bicameralism and presentment, even while it excuses agency lawmaking through an indulgent fiction.These two lines of cases could once be rationalized under a bright-line rule: delegation to the executive and judicial branches was permitted, while delegation from the legislature to itself was forbidden self-aggrandizement. But in Clinton v. City of New York, this rationale collapsed. The Court struck down the line-item veto — a delegation of authority to the executive branch — under the strict rule, demolishing the self-aggrandizement theory and leaving nothing in its place.This Article claims the unsung Entrenchment Clause of Article V, which guarantees “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate,” as a substantive limit on Congress’ power to delegate. Because a bar on constitutional amendments depriving states of equal suffrage must a fortiori also bar legislative acts with the same effect, delegation is unconstitutional if it prevents small states from extracting benefits from the legislative process as the price for their consent.Applying Entrenchment Clause analysis to cases from Schechter to Chadha, this Article shows that protection for small-state constituencies is the rationalizing principle behind the Court’s seemingly inconsistent decisions.

Rethinking the Costs of International Delegations

A prominent criticism of U.S. delegations to international institutions – or international delegations – focuses on agency costs. The criticism begins by drawing a stark contrast between international delegations and domestic delegations. For domestic delegations to agencies, U.S. congressional, executive and judicial oversight mechanisms are present to try and maintain the agency’s democratic accountability. Since the agency is democratically accountable, the agency costs are low. For international delegations of binding authority to international institutions, however, the conventional wisdom is that oversight mechanisms are absent and the U.S. cannot monitor the international institution to ensure it acts within its delegated authority. In the international context, agency costs are high. The fear of high agency costs through the loss of democratic accountability, so the argument goes, justifies constitutionally inspired limits on international delegations. This Article challenges the conventional wisdom. It argues that the agency costs claim rests on weak foundations as agency costs will likely vary depending on the type, scope, and nature of the delegation; that the U.S. has actually implemented many of the domestic oversight tools in the international context, ensuring a surprisingly high level of accountability to American interests; and that the potential costs and benefits of international delegations are not meaningfully different from those in domestic delegations. In other words, there is little systematic difference between domestic and international delegations with respect to the efficacy of oversight mechanisms or the balance of costs and benefits. The Article concludes that constitutionally inspired limits on binding international delegations are probably unnecessary because they will increase the costs for the U.S. to participate in potentially beneficial international cooperation.