51 rather the area of acute concern that has

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51 Rather, the area of acute concern that has intensified with the growth of a positive government relates to legislative oversight and control of the administrative development and execution of policies authorized by Congress. In this regard, a maxim in Locke’s teachings, delegata potestas non potest delegari , comes into play. This doctrine, central to constitutionalism and the rule of law, holds in effect that legislative powers, constitutionally delegated by the people to the legislature, cannot be further delegated by the legislature to another body or agency. While readily comprehensible in theory, in practice it raises the complex question of what constitutes an unconstitutional delegation of legislative authority to the executive branch. The earliest dispute concerning the validity of a congressional delegation occurred over the authority of the president to impose an embargo when he deemed conditions set forth by Congress warranted. 52 Much later, beginning late in the Nineteenth Century, other challenges arose over the grants of discretionary authority to the president in raising or lowering tariff rates. 53 In these instances, the Supreme Court resolved the issue by holding that the discretionary grants by Congress for imposing or lifting the embargo were sufficiently defined and clear cut. Two cases arise in 1935 involving the congressional delegation of authority to the president by the National Industrial Recovery Act (1933), an act designed to stimulate the economy by promoting fair competition in various sectors of the economy, are of particular interest. One provision of the Act conferred discretionary authority upon the president to forbid the interstate shipment of “hot oil” -- i.e., oil produced in excess of that permitted by state law. Since this grant of authority contained no guidelines concerning when the president should forbid or permit such shipments, the Court for the first time in the nation’s history held the delegation to be unconstitutional. 54 The Court shortly thereafter also ruled that the “Live Poultry Code” of the Act unconstitutional on grounds that the code’s definition of “fair competition,” the goal set by Congress, was so vague as to constitute a 51. By the Twentieth Century what John Stuart Mill asserted in his Considerations on Representative Government was “slowly beginning to be acknowledge” had finally become common knowledge, namely, “a numerous assembly is as little fitted for the direct business of legislation as for that of administration.” This realization, no doubt, accounts for the acceptance of the president’s role as chief legislator. John Stuart Mill, Utilitarianism, Liberty, and Representative Government , ed. A.D. Lindsay (New York: E.F. Dutton, 1950), 315.
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  • Fall '16
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  • Separation of Powers

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