Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

52 united states v the brig aurora 7 cranch 383 1813

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52. United States v. The Brig Aurora , 7 Cranch 383 (1813). 53. See Field v. Clark , 143 U.S. 644 (1891) and Hampton and Co. v. U.S. , 276 U.S. 394. 54. Panama Refining Co. v. Ryan , 293 U.S. 388 (1935). 279
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transfer of the legislative function to the executive. 55 Since 1935, however, the Court has not ruled any Congressional legislation in violation of Locke’s maxim, though the issue was raised in 1997 when the Court invalidated an act that vested the president with a qualified “line item” veto power; that is, the power to veto specific provisions of an appropriations measure. 56 The delegata potestas non potest delegari doctrine would now appear to be a dead letter. The Court has upheld extremely broad delegations of power to the executive branch. Congress in establishing the Occupational Safety and Health Agency (OSHA), for example, gives the agency a broad mandate, namely, “to assure as far as is possible every working man and woman in the nation safe and healthful working conditions and to preserve human resources.” 57 Likewise, Congress has delegated broad authority to independent regulatory commissions. The Consumer Product Safety Commission, for instance, is charged with the responsibility of protecting the public “against unreasonable risks or injury associated with consumer products.” 58 With the enormous expansion of government programs and regulation, which has continued with fits and starts since the New Deal, Congress has delegated wide discretionary authority to numerous agencies and commissions. In the first decade of the 21 st Century, The Federal Register, which records the rules and regulations issued by these bodies in carrying out their missions, had grown to 70 volumes and more than 70,000 pages. OSHA alone has issued some 4,000 detailed rules and regulation. 59 Various concerns have arisen over this development. The rules and regulations promulgated by these numerous agencies and commission have, in effect, the force of law since they carry penalties for non-compliance and they also impose compliance costs upon various concerns in the private sector. Above all, the number of such regulations lends to the selective and often arbitrary imposition of the rules and regulations thereby undermining rule of law, one of the major goals sought through the separation of powers. Congress for a time, through provisions for one house and two house vetoes of administrative rulings and actions, sought to insure that its laws were interpreted and executed in keeping with its intent. Provisions for congressional veto of specified executive actions, either by one or both chambers, were inserted in a wide variety of legislation – e.g., executive reorganization, regulation of trade, energy policy -- starting in 1932. In 1983, however, such vetoes were deemed a violation of the constitutional separation of powers, that is, unconstitutional congressional intrusion into the executive 55. Schechter Poultry Corporation v. U.S. , 295 U.S. 495 (1935).
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