Politics and the Principle that Elected Legislators Should Make the Law

Abstract:     
The Supreme Court's decision in Whitman v. American Trucking Association has been widely understood as repudiating decisively the principle that elected legislators should make the law or as refusing to enforce this principle on the basis that the Court lacks a judicially manageable standard. This article argues that at least some Justices believe that the Constitution does embrace that principle and further believe that it is judicially manageable, but shy away from enforcing it because it is politically impossible for it to stop Congress from delegating politically controversial choices to administrative agencies. The Court has, however, found it possible to prevent the practice of delegation from spreading to include delegations to governmental institutions other than agencies and has done so. Seeing the delegation case law as driven by political constraints provides a way to understand seeming disparate areas of case law and also shows that the Court does have a useful, although not all-powerful role in enforcing the constitutional principle that elected legislators should make the law. Moreover, the Court has begun, however subtly, to play that role in ways that could eventually have repercussions for delegations to agencies.

Number of Pages in PDF File: 43

Keywords: Delegation, Nondelegation, agency lawmaking, American trucking

Accepted Paper Series