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Negative Lawmaking Delegations: Constitutional Structure and Delegations to the Executive of Discretionary Authority to Amend, Waive, and Cancel Statutory Text

86 Pages Posted: 12 Sep 2012 Last revised: 6 Mar 2013

R. Craig Kitchen

Harvard Law School

Date Written: March 4, 2013

Abstract

When, if ever, may the Executive amend statutory text? Suppose the President thinks that unintended consequences of a comprehensive statutory scheme fall disproportionately on certain groups. May the President waive the legal force or effect of the offending statutory provisions for those groups? Can the Executive unilaterally repeal part of a statute by cancelling the legal force or effect of its text? Over a decade ago, in Clinton v. City of New York, the Supreme Court suggested that the answer to all three questions is “no.” Congress may not give the Executive the unilateral power to change the text of duly enacted statutes because amendment and repeal of statutes, no less than enactment, must conform with bicameralism and presentment. In so holding, the Court purported to enforce the requirements of Article I, Section 7, thereby honoring the constitutional text and structure governing lawmaking. This Article reexamines the Court’s holding and shows that it has had limited, if any, impact on judicial review of lawmaking delegations.

Relying in part on the Court’s analysis, this Article then proposes an analytical framework for lawmaking delegations. The framework, based on the effect the delegated power has on statutory text, categorizes lawmaking delegations as either positive or negative. Positive lawmaking delegations involve the Executive’s delegated power to create rules or standards that are binding with the force of law. Negative lawmaking delegations involve the Executive’s delegated power to negate the legal force or effect of statutory text. Within the statutory landscape of the modern administrative state, four distinct types of negative lawmaking delegations predominate: (1) contingent legislation, which predicates the negative power on the Executive’s finding of a condition or fact; (2) amendment, which allows the Executive to modify the legal force or effect of statutory text; (3) waiver, which grants the Executive the power to negate the legal force or effect of statutory text for specific persons, projects, or categories of activities; and (4) cancellation, which allows the Executive to rescind the legal force or effect of statutory text entirely.

Formally, each type of negative lawmaking delegation allows the partial or total negation of statutory text and is thus constitutionally suspect under the Court’s formulation of Article I, Section 7’s requirements. Beyond formal negative effect, however, negative lawmaking delegations also share a significant functional pathology in light of the constitutional structure: they allow the Executive to undo the legislative compromises necessary to specify the details of statutory text. Understood in this way, many, if not most, negative lawmaking delegations are unconstitutional because they undermine a key structural purpose of Article I, Section 7 — namely, protecting political minorities by empowering them to demand accommodation in determining the details of the laws that govern them. Moreover, reinvigorating Article I, Section 7 as a constraint on negative lawmaking delegations would protect the fruits of hard-fought legislative battles, thereby respecting compromise, rather than undermining it.

Keywords: separation of powers, administrative law, lawmaking delegation, item veto, bicameralism and presentment

Suggested Citation

Kitchen, R. Craig, Negative Lawmaking Delegations: Constitutional Structure and Delegations to the Executive of Discretionary Authority to Amend, Waive, and Cancel Statutory Text (March 4, 2013). 40 Hastings Const. L.Q. 525 (2013). Available at SSRN: https://ssrn.com/abstract=2144885

R. Craig Kitchen (Contact Author)

Harvard Law School ( email )

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