Delegation Really Running Riot

33 Pages Posted: 2 Aug 2006

See all articles by Larry Alexander

Larry Alexander

University of San Diego School of Law

Saikrishna Prakash

University of Virginia School of Law

Date Written: July 24, 2006

Abstract

Conventional delegations - statutes delegating Article I, section 8 authority - are familiar enough and have spawned a large literature regarding their constitutionality. Rather than discussing whether Congress may delegate these powers, we wish to shift the focus to delegation of other powers. Starting from the assumption that conventional delegations are constitution, we ask whether Congress may delegate other congressional power, such as those found in Articles II, III, and IV. For instance, we consider whether Congress may delegate the power to admit states and to propose amendments to the Constitution. We also consider whether Congress may delegate cameral authority, such as the House's ability to impeach and the Senate's ability to confirm nominations. Finally, we address whether the Congress may delegate powers to other entities and in the process circumvent or evade powers granted to other branches. We conclude that if one accepts the constitutionality of conventional delegations, one must likewise accept the constitutionality of all manner of unconventional delegations. If the Necessary and Proper clause permits the making of laws outside of the Article I, section 7 process, it likewise permits the approval of treaties outside the Article II, section 2 process. And the same is true for the other unconventional delegations we discuss here. In this way, the delegation of cameral and bicameral power can be a means for "altering," or at least evading, the structural Constitution's most notable features.

Keywords: delegation, necessary and proper, congress

JEL Classification: K1, K10

Suggested Citation

Alexander, Lawrence and Prakash, Saikrishna, Delegation Really Running Riot (July 24, 2006). San Diego Legal Studies Paper No. 07-54. Available at SSRN: https://ssrn.com/abstract=921743 or http://dx.doi.org/10.2139/ssrn.921743

Lawrence Alexander

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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