CARDOZO LAW REVIEW [Vol. 20:823 1999]

STRUCTURES AND TERMS OF CONSENT:
DELEGATION, DISCRETION, SEPARATION OF
POWERS, REPRESENTATION,
PARTICIPATION, ACCOUNTABILITY?

Hans A. Linde*

I. MAPPING NONDELEGATION THEORY’S CONTEXT

A search for theory is shaped by the terms in which the inquiry is phrased. The terms nondelegation and doctrine implicitly narrow our inquiry,[1] first, to delegation by legislatures to non-legislative officials and, second, to doctrine, meaning propositions perceived as binding and applied by judges. In fact, what theorists debate is delegation by Congress to administrative agencies and doctrines found in opinions of federal judges.

Narrowing the focus has a cost: It assumes that what lies beyond the chosen field of view does not affect the theory. My purpose here is to widen the focus. The effect is to disclose a broad gap between large principles invoked for nondelegation theory and the rather narrow scope its advocates intend for it. Congressional delegation to regulatory agencies is only one feature among many in a larger mapping of legitimate lawmaking authority in republican forms of government. A nondelegation theory that singles out regulatory policy and excludes the quantitatively more important terrain of managerial and spending policy must at least explain why regulation is different. That exclusion undermines the theory’s democratic premises. On the other hand, nondelegation theory must accommodate constitutional guarantees against majoritarian power.

The map also needs to include the states and local governments and to compare other national models for two reasons. States, like foreign nations and unlike the federal government, are general purpose governments, with the whole range of institutions and social tasks that this implies. Many general propositions about the separation of powers, or about representation and political accountability, do not survive the test of comparison. My second, more parochial, reason is the feedback of national doctrines to the states. Public law scholarship and professional literature are overwhelmingly occupied with the single national government. This leads judges, lawyers, and professors to analyze issues of state and local governance in the terms of national doctrine, regardless of differences in structure, functions, or history.[2] A wider focus helps both national theory and the states.

National theory starts from the simple model of 1789: An elected Congress to make laws in enumerated fields, essentially on a clean slate; a new, separately elected chief executive to oversee those who carry out the laws and to perform other executive functions; and independent federal courts. The model lets constitutional lawyers and theorists concentrate on a few issues: on the relationship between the President and appointed officials to whom Congress assigns specified authority, on congressional transfers of lawmaking responsibility, on efforts by Congress to share in or to countermand authorized acts without passing a new law, and on presidential claims of power without congressional authorization. These issues are then lumped together under the rubric of separation of powers.

The structures that make and administer the bulk of American law are not so simple. Although state constitutions also create separate legislatures, executives, and courts, and explicitly tell each branch to keep in its own sphere,[3] that is far from a complete description. States then split executive authority among separately elected administrators who exercise authority independent of the states’ governors.[4] So do city councils and county commissions, school boards and other districts, in forms that defy generalization about separation of powers. Historically, some states allowed legislators to appoint members or other persons to participate in administration.[5] Some recent amendments have allowed legislative disapproval of agency regulations. Where high-level theorists are lumpers, state theorists must be splitters.

Unlike the national government, states have not depended on legislators for their laws. States long relied on courts as the primary source of private law, without legislative delegation. Lawyers still debate major legal changes to state courts before seeking legislation.[6] Beyond common law doctrines for private disputes, state courts widely claim inherent, nondelegated, regulatory power over lawyers and their competitors, lawmaking power that the profession sometimes claims to exclude legislation altogether.[7]

Compare also the equally central example of law enforcement. Justice Antonin Scalia argued that the independent counsel law was invalid because “investigation and prosecution of crimes is a quintessentially executive function” and thus vested exclusively in the President.[8] In most states, investigation of crime is in the hands of elected sheriffs and of municipal police. Prosecutors work neither for the governor nor for the separately elected attorney general but are themselves elected by local constituencies.[9] Criminal law is the harshest of regulatory sanctions, yet decentralized structures permit the widest discretion in applying the least delegative laws.[10]

So discretion rather than delegation could be the scale for mapping the territory, as Kenneth Culp Davis showed thirty years ago.[11] Davis’ object was to show that the drawbacks of discretion could be met more effectively by the safeguards of agency rule-making than by invalidating agency statutes. His solution relates more to inconsistent acts in individual cases than to discretion in choosing the ends and means of policy.[12] But shifting terms from delegation to discretion omits the political dimension, for the least discretion exists in disciplined autocratic regimes. The political dimension is the consent of the governed.[13] In republican governments, this does not include consent to autocracy, whether by custom or by plebiscite. It is harder to say what does qualify as the consent of the governed. Who counts among the governed, and what counts as consent?

The national model postulates consent in the form of enactment by elected representatives of geographic constituencies, normally with the assent of the separately elected President, and administered by officials appointed by the President. Not surprisingly, both the agenda and the substance of policies in each branch reflect the intensity and the persistence of those special interest groups that have sufficient resources to affect elections and to maintain a long-term watch over the pertinent legislators and agencies. Scholars and reformers, even Presidents and congressional leaders, repeatedly seek ways to subordinate the welter of special interests to some coherent view of the overall public interest, without, however, questioning the basic constitutional forms of consent.

In the states, consent by representation and accountability does not always mean popular election of the policymakers or accountability to the governor and legislature. In many states consent takes the form of direct referenda, and initiative measures impose policies, often over the protests of elected officials.[14] Nor are state agencies only the minions of those elected officials. Unlike the full-time public officials — the much-maligned bureaucracy — who administer national laws under substantial strictures against conflicts of interest and ex parte influence, many state and local agencies are composed of unpaid, part-time members who by law or in practice are appointed because they represent the most interested groups.[15] Obvious examples are professional licensing boards, sometimes adding a nonprofessional, public member outside the profession as a token of accountability. Professional licenses often require graduation from schools accredited by private groups like the American Bar Association.

Other boards are designed so as to secure relative weights for competing interests, and political fights break out over an appointment that may shift the balance.[16] Some agencies, such as marketing boards or university student governments, are elected only by those directly involved in their functions and are wholly unaccountable to the general electorate. Where states make all lawyers members of an organized state bar, the governors are elected only by lawyers, not clients.[17]

These are problematic delegations of public authority to private groups rather than legislative delegation to executive officials.[18] Before pursuing them further, let us turn to the dubious distinction between delegation in regulatory and in managerial administration.

II. DELEGATION IN PUBLIC MANAGEMENT

Professor David Schoenbrod, a recent proponent of a strong nondelegation doctrine, explicitly confines his argument to the enactment of “rules of private conduct” and excludes the pursuit of governmental programs by managing public funding or property.[19] What justifies such a distinction in legitimate lawmaking?[20]

The reason cannot be that, aside from the criminal law’s basic protection of persons and property, regulatory laws are intrinsically more important to the nation, to communities, or to people’s daily lives than are the policies governing public spending and property. Particularly at the national level, the opposite is true.

Congress has taxed, spent, and disposed of the public domain more than it has used regulation to shape the national economy and its particular or local sectors, from the first tariffs in 1789 through the homestead laws and the railroad land grants to twentieth-century highway construction and river basin development. In the West, businesses and communities rise and fall by agency management of timber sales and grazing permits on public lands. Utility rates rise or fall with federal power agency contracts.[21]

Generations of individual lives, too, have been shaped by tax deductions for mortgage interest, student loans and grants, unemployment compensation, Social Security, Medicare, housing, welfare, and veterans’s programs. Builders, schools, and hospitals depend on how these programs are managed. Sometimes executive orders attach conditions to government contracts or loan guarantees on which legislators might not have agreed.[22] Compliance with program standards govern much private conduct more than mandatory laws do. Only a few regulatory statutes have similar human importance; examples are immigration, employment, civil rights, safe medicines, and clean air.[23] While Congress dismantles regulation of commercial enterprise, it invokes the commerce power instead for marginal but politically potent non-economic issues like banning late-term abortions.[24]

States regulate more of daily life: land use and construction standards, vehicles and drivers, restaurants and taverns, pharmacies, dry cleaners, undertakers, and many other services. But people’s lives are shaped as much by the public schools and colleges; public roads, streets, parks, transit systems, and housing; and state medical and welfare programs. Transit and schools no longer follow zoning; rather, regulations of land use follow plans for large scale public infrastructures. When social services use both federal and local funding, agencies at both levels often have broad authority to impose requirements enforced only by loss of eligibility, which often is more drastic than punishment. Block grants replace categorical programs for the very purpose of delegating the power to spend federal funds with wide policy options and few federal requirements. Where are the claims that such transfers of program authority are excessive delegation?

Comparative importance cannot explain why Congress may delegate more discretion to managers of public programs than to regulatory agencies. Nor is dependence on continued funding an adequate explanation. Perhaps it is easier for appropriation committees to control details of funded programs by specific budget lines, although this is not an unknown device for controlling regulatory enforcement. Such selective intervention in broad managerial discretion is not the equivalent of a nondelegation doctrine but a substitute. Cutting or restricting funds does not amend the existing statutory delegation but tries to affect its administration for the period of the appropriation.[25]

Even this substitute fails when agencies have earmarked sources of funds. The United States Constitution’s command that “no Money shall be drawn from the Treasury, but in Consequence of Appropriation made by Law” was repeated in state constitutions, but decentralized public structures dilute its force.[26] Separate tax bases for separately elected school boards often impair the effectiveness of state school systems. Although constitutionally school boards are agencies of the state, not local governments, many might be surprised to learn that their tax collections require legislative appropriation.[27] The use of dedicated fuel and vehicle taxes for highways was assigned to appointed commissions precisely in order to end legislators’ battles over pieces for their districts.

The biographer of New York’s long-time public works czar, Robert Moses, describes how managerial power without political accountability can exceed regulatory power.[28] For four decades, Moses transformed New York’s islands into the modern metropolis by building seven bridges, some thirty expressways and parkways stretching far beyond the city, many parks, large cultural complexes, and apartments for a half-million low income residents, but at the cost of destroying existing neighborhoods. A quarter million people were evicted from their homes, not by regulations, but with the power of money and eminent domain exercised by public authorities that were viewed as nonpolitical entities.[29]

Lawmakers often grant wide managerial power to perform a function that seems to be defined by inherent criteria and to call for professional competence, especially when a public function is modeled on a private analogue, like public housing or hospitals. Thus, when legislators entrusted boards of regents with new state universities, statutes did not prescribe curricula, admissions standards, grading systems, or student conduct codes. Existing universities were sufficient models for what was intended. The lawmakers could wait to intervene when they cared about some specific issue. Yet, admission standards and degree requirements are rules, and are as important to students as government timber and grazing policies are to western mills and ranchers.

Rules in public sector institutions pose a puzzle for advocates of a nondelegation doctrine. If their doctrine would not apply to such rules, why not? Would the doctrine apply if legislators empowered a board to make the same rules for private institutions? Why would lawyers accept wide delegation in public management of a function, but not in agency regulation of the same function? History is one reason; another is that legal doctrines are shaped by litigating private rights.

History offers a simpler explanation than democratic theory. Executive power long preceded parliamentary government. Kings, dukes, and lesser autocrats governed by decree and managed public assets by command. That was the baseline. The struggle from Magna Carta to the Constitution was over the right to give or withhold consent to royal demands for money, property, and services, and incidentally over arbitrary acts to enforce the royal will.[30]

Taxes and crimes remain the most questionable subjects of delegation.[31] In Europe the same struggle over fiscal control and freedom from enforced decrees moved from the landed nobility to the urban classes whose earnings and investments were the “new property”[32] of the commercial and industrial age.[33] Their claim was not that the long-established structures of administration were exercising powers of the legislature, but that public officers could not restrict private rights except by laws enacted by elected representatives. Even today, while American lawyers may speak of the legislature’s delegating its powers, their German counterparts speak of reserving essential lawmaking for statutes and withholding it from the governments of the day.[34]

This power struggle, however, did not concern the preexisting royal forests and parks, palaces and porcelain factories, nor cultural institutions like museums, theatres, churches, universities, hospitals, and their operation, except as they demanded tax support. Historically, management of the public sector appears not as authority delegated by the elected representatives but as a residue after power to regulate private affairs is wrested from autocratic government.

American law intuitively assumed the same distinction between management and regulation. Courts analogized government management of public operations to private management rather than to government regulation of private operations.[35] Standing doctrine reinforces this split vision of delegation when it allows review only as protection against injury and excludes other claims to lawful government.[36] Thus, courts would examine claims of excessive delegation only among the objections to regulation made on behalf of private persons, while far wider delegations go unreviewed for lack of injured parties. In contrast, many state courts allow disputes over institutional structures to be litigated between the institutions concerned or, in some states, to be resolved by advisory judicial opinions.[37]

Eventually, the analogy of public management to private management buckled under the weight of modern developments. A simple doctrine that government spending and management were not lawmaking was untenable. The interests of affected beneficiaries, employees, and users of public services were no longer dismissed as “privileges.”[38] Private persons more readily gained standing to assert broader interests in environmental laws beyond any personal self-interest, though constitutional challenges to managerial decisions still needed to claim rights to equal treatment, due process, property, or free expression.[39] Negotiated rulemaking later modified the administrative process to allow a greater role for recognized interests. Aside from opportunities to be heard on the merits of agency decisions, however, what about the diverse structures of decision and consent scattered all over our map?

III. DELEGATION OUTSIDE THE EXECUTIVE HIERARCHY

Lawmakers may place a public service outside an executive department under a wide range of names: authority, board, cooperative, commission, corporation, district, endowment, foundation, institute, or institution.[40] Most of these are unambiguously public entities, headed by public officials. Others blur the line between public and private forms, sometimes in order to insulate a function from politics and sometimes for fiscal reasons. At one pole of the continuum, demands for smaller government lead to privatizing penal functions, and to spinning off universities and state broadcasting systems into nonprofit corporations.[41] At the other pole, huge capital enterprises like the Disney Corporation build large cities, contractually controlling their homeowners more tightly than normal citizens are by legal regulations,[42] to an extent that may require the enterprises to be treated as “state actors” for constitutional purposes. How should a nondelegation doctrine bear on the delegation of such lawmaking power?

Governments at home and abroad sometimes organize public enterprises as corporations in the name of flexibility, freeing their financial, purchasing, and personnel management from civil service and government contracting laws. Yet, often these public entities also make policy decisions of great importance to people who have no voice in corporate management. The public is represented only through the institutions of politics from which the enterprise is supposedly separated.[43] When British governments nationalized basic industries under corporate boards free from ministerial direction, an unresolved question was the effect on the normal obligation of ministers to respond to parliamentary inquiries about the policies of these public managers. But even when governments hold only a controlling plurality of shares in an ostensibly private corporation, the directors representing the government’s shares can, and sometimes do, insist on placing the concerns of workers, dependent communities, and other state enterprises ahead of pure financial efficiency.[44]

Public sector management is public policy as much as regulation of private management is. Democratic control over this delegated policymaking is pursued by many devices: making an agency responsible to an elected chief executive, direct election of agency heads, transparency and access through procedures of open policy-making, legislative control of budgets, and plebiscites on the policy itself[45] — but not, to my knowledge, by a nondelegation doctrine. If a private utility must go through a regulatory process with comprehensible policy standards to build a power plant or to change its bus service, why should a municipal bus line or electric utility not have to use a comparable policy process for its own plans? Yet, procedural solutions cost time and money and invite lengthy review for alleged errors unrelated to the merits, without really satisfying those who lose the policy dispute.

What groups with opposing positions want is not to be heard; they want to win, and if they can win without being heard they will gladly dispense with a public hearing. They prefer to participate in the decision itself. The Community Action and Model Cities programs of the 1960s were designed to recruit members of beneficiary groups for “maximum feasible participation” both as policy-makers and as advocates, fusing their adversary with their administrative roles and leading to law suits over competing claims to “recognition” and to participation.[46] Another form of special participation appears in collective bargaining rights for public employees, which affect the rest of society in competing for the funds available to the elected legislators and sometimes in shaping the performance of agencies like the police or public schools. A genuine issue of delegation arises when state labor law requires arbitration of unresolved issues and the arbitrator is not a state official.[47]

IV. PURPOSEFUL INSULATION FROM POLITICAL DIRECTION

Our map must reflect one further complication. While democratic theory demands that policy be responsive and accountable to voters, it also requires that some areas of public administration be insulated from direct political control by the government of the day. These sensitive areas include functions that are necessary to preserve the government’s accountability and the capacity of the governed to grant and withhold their consent. Independent auditors or controllers, election officers, ethics commissions, state attorneys general, and courts serve such functions. Quite different reasons have preserved the Federal Reserve Board from short-term political direction, but the independence of central banks is a political issue in many nations and among opponents to the European monetary union.[48] The most sensitive functions include public media of information, opinion, culture, and science, as well as the substantive content of public education.

Representation and accountability were at issue in organizing the Legal Service Corporation. The original Senate bill reflected a theory that the Board of Directors should be accountable to professional organizations like the American Bar Association, the Association of American Law Schools, Legal Services lawyers, and to Congress and the public. President Nixon vetoed the bill on grounds that the “sole interest to which each board member must be beholden is the public interest. The sole constituency he must represent is the whole American people,”[49] and that this was assured only by presidential appointment with the advice and consent of the Senate. The bill that became law accepted this format.

Public broadcasting is a more dramatic example of essential insulation from direct political accountability. Wherever public broadcasting has predominated over its private alternatives, its organizational forms have ranged from direct control by a totalitarian regime to governing boards designed to secure nonpartisanship and editorial independence. After World War II, German broadcast stations were organized as “institutions of public law” in the separate British and American occupation regimes. In one zone, their boards had to include direct representation of “all relevant social forces,” meaning churches, labor unions, professions, and women’s and youth groups for which organizational representatives could be found — a format that, however, left out foreign and non-Christian workers and other unorganized interests. In the other zone, selection of the boards was entrusted to the state parliaments. That system led to battles over political party representation on the boards and proportional or redundant staffing in a number of countries.

Yet, another issue between political control and institutional independence arises in public universities. The California constitution, for instance, places the direction of the University of California in the hands of a board of long-term Regents and expressly insulates it from political influence.[50] Is the admission of students a matter of institutional autonomy or of social policy in the use of a scarce public resource? Access to higher education is a crucial social and political issue throughout the world. Where should this policy be made?

In Bakke v. Regents of University of California,[51] the faculty of one professional school set aside sixteen places in the entering class for minority applicants.[52] Such a formula unmistakably is an agency rule. Normally an administrative lawyer would trace the authority for a single department’s rule — whether it reflected a policy of the wider university faculty and whether either the rule or the delegated power to adopt it was authorized by the university’s chancellor, by the system-wide president, and by the Board of Regents — before reaching a claim under the Fourteenth Amendment of the United States Constitution.[53] That might have moved the policy issue to the highest responsible level. But is the delegation of state university admissions policies to a group of Platonic regents and beyond legislative change vulnerable on structural grounds? The California court would not let such questions distract it from setting up a test case on equal protection for the United States Supreme Court.[54] Setting admissions policy by an initiative measure (as California voters’ later did in banning affirmative action to assist minorities) is at the opposite pole from the institutional autonomy apparently guaranteed by the California Constitution.[55] Academic freedom to decide what to teach in a course, however, may be a stronger claim for institutional autonomy than whom to teach, strong enough to require broad delegation, much like first amendment claims of public broadcasters and other cultural institutions.[56]

V. CONSTITUTIONAL STRABISMUS

This quick survey shows that American government is far more complex than the model of a single, system-wide legislature delegating lawmaking power to an executive bureaucracy assumes. Constitutional law sometimes controls delegation for reasons concerned not with separation of powers, but with equality, due process, and protection of free expression. Splitting the constitutional vision among these divergent concerns precludes a single nondelegation formula.

The United States Constitution requires the states to maintain republican forms of governments,[57] but the Supreme Court has not imposed separation of powers on state governments under this or any other clause. Instead, the Court has reviewed the legitimacy of state lawmaking processes, like other state actions, for equal protection, fair procedures, and First Amendment guarantees. If theorists would broaden their inquiries to include the states, they would find constitutional provisions that more directly concern the interaction of democratic government with private groups. Some early state constitutions like Oregon’s forbid any law “the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution,”[58] as well as any grant of a privilege or immunity “which, upon the same terms, shall not equally belong to all citizens.”[59] They also forbid the state and local governments to invest in corporations or to assume their debts.[60] But while designers of state constitutions expressly insisted on the separation of legislative from executive and judicial functions, they saw no inconsistency in also providing for the popular election of many separate officials, with the degree of independent discretion that this implies. How can the postulates of constitutional theorists accommodate these variations?

A structural postulate in the state and federal constitutions is that basic lawmaking authority is “vested” in collegial bodies with territorial jurisdiction and a constituency of residents in that territory.[61] By virtue of the Equal Protection Clause, this constituency must be represented on the principle of “one person, one vote.”

Republican government excludes rule by autocratic decree.[62] The authority to decide that there should be a law or a “program” at all, and for what broad purpose, cannot be transferred except to another collegial body elected on the same principle (or to the voters themselves), that is to say, to an elected local government. One price of that transfer is a host of issues arising from local actions that affect nonresidents who can vote in the state but not within the smaller territorial unit.

States invoke one legitimizing characteristic of the legislature when they transfer authority to independently elected collegial bodies.[63] Could Congress delegate any of its powers to elected subgovernments, as has occasionally been suggested for river basin authorities? If such delegation would be impermissible, as I would expect, the reason must lie in the United States Constitution, not in a general nondelegation theory.[64] Broad delegations to elected subgovernments in the states, however, do involve issues of structure and of consent.

1. How small can a legislative body be? One issue is the relation between policy autonomy and the size of the elected body. Numbers matter to representation and to the odds of diversity of views and open debate before decision.[65] A single lawmaker, such as a mayor or county executive, would not be a plausible miniature legislature for open-ended “home rule” lawmaking. How large an assembly is needed to make general laws may reasonably depend on the size and diversity of the community and the range of issues within its lawmaking authority. A three-member county commission or city council may be effective supervisors of ongoing administration,[66] but are three persons an adequate legislature for regulating private behavior by penal ordinances or civil liability?[67] Does democratic theory draw a line between lawmaking by a single elected official and lawmaking by the votes of two commissioners or does this depend on the scope of the delegated authority?

Such questions are better examined under the test of republican government than under the Fourteenth Amendment. One worthwhile question for constitutional theorists is whether the need for explicit or implied ends and means in delegating wide lawmaking power to elective government entities varies inversely with the size of the governing body.

The postulate that basic lawmaking authority is vested in elected legislatures faces a second issue. How can devices to insulate some public functions from direct political control be squared with this postulate?

2. Safeguarding free expression and inquiry. Familiar devices, besides an independent funding source, include long terms in office and bans on political directives concerning the content of programs, like those exemplified in the constitutional status of the University of California Regents.[68] When such devices are used for First Amendment-sensitive functions like higher education, broadcasting, libraries, museums, or theaters without imposing constraining standards, the reason is not efficiency but academic and editorial independence.[69] Yet, the First Amendment also constrains granting officials wide discretion to permit or forbid uses of the public forum, in effect requiring meaningful standards that can withstand constitutional scrutiny.[70] The First Amendment, in turn, rarely limits an independent agency’s discretion on what to publish, despite objections of persons who are forced to contribute funds to the publication.[71]

3. Procedures proportionate to agency autonomy. Can procedures secure the public an effective right to petition, even if not effective control? Normally, due process requires agency hearings and reasoned decisions only for disputed applications of preexisting rules, not for policy choices. Requiring the same process for policy issues can add transparency and responsiveness in policy-making by highly discretionary agencies. Many state and local laws already require advance notice of the agenda of city councils and other local agencies, opportunity to submit views, and open debate and votes. Thus, a second task for constitutional theory could be to reexamine the relation between the degree of policy guidance given an autonomous agency and a requirement of open policymaking by the agency. Imposing such a requirement may seem contrarian if one uncritically accepts an elected body’s claim to act by original lawmaking authority, but not when the body is understood to exercise delegated, open-ended discretion.

4. The role of private influence. Finally, how far may lawmakers make a broadly delegated program responsive by giving the most affected interest special power to shape the delegated policy? Agency accountability for delegated policies comes in many forms, but delegation to private interests designedly leaves the delegate accountable to those interests rather than to the general public.

In Oregon and other states, letting selected interests vote on the actual decision would face a ban on subjecting a law to an authority not provided in the constitution.[72] The New Deal laws of the 1930s, on the other hand, gave producers important powers over agricultural marketing laws and used existing self-regulatory organizations like the stock exchanges and the National Association of Securities Dealers to help regulate securities markets.[73] Since 1996 regulation has been further delegated to a new subsidiary, NASD Regulation, Inc., whose board is an equal mix of public and industry representatives.[74]

Federal equal protection doctrine has been equivocal. The Supreme Court held that elections in education districts could not be limited to parents and taxpayers,[75] but farm operators could be given sole power to elect directors of a state-created water storage district, with votes based on the value of the benefited land regardless where the owners resided, while excluding local residents who would be affected by the district’s operations.[76] A later decision reaffirmed that voting could be limited to landowners for districts performing essentially business rather than governmental functions.[77]

The case of the special district, which has resident citizens, squarely presents the choice between democratic and economic consent in a governmental program. The dissenters in Salyer Land Co. v. Tulare Lake Basin Water Stor. Dist., 410 U.S. 719 (1973), protested: “It is indeed grotesque to think of corporations voting within the framework of political representation of people.... [I]t would change our whole concept of the franchise” to let “one corporation outvote 77 individuals” in elections for a district performing governmental functions, “leaving every individual inhabitant with a weak, ineffective voice.”[78] Giving landowners a vote or a veto on annexations or land use plans shows the problem in a wider context.[79] The question whose consent counts matters not only to residents in a district but also to consumers of regulated commodities or professional services. Yet, it is difficult to define voting rights for all affected persons, short of the ultimate political electorate based on territorial citizenship (the concepts rooted in the Greek polis and the Latin civitas) — a difficulty that argues against the validity of delegating the power of consent to any other group.[80]

Due process, in turn, requires basic impartiality and attention to evidence when a law is applied to specific persons on disputable facts, but the text of the Due Process Clause and its judicial development focus on the protection of private interests rather than on legitimate institutional structures for their own sake.[81] Unlike equal protection, due process has set few standards for a legitimate process of lawmaking. One could hardly disqualify elected lawmakers for prejudging issues and looking for facts only to support their own views, or the political commitments to constituencies and to policies on which they were elected. Those to whom legislators delegate rulemaking authority are constrained by the express or implied terms of the delegation and by general procedural laws, not much by federal due process doctrine.[82] But public policies are not made by a legitimate process when lawmakers delegate them to private interest groups, nor to boards whose members are chosen by such groups to serve as their representatives, rather than as knowledgeable, unbiased professionals.[83]

VI. WHAT PLACE FOR NONDELEGATION THEORY?

In sum, one cannot describe lawmaking authority in the United States as a monopoly of the institutional legislature that it cannot delegate to others. Structures and devices that contradict such a description are all over the map. They range from direct legislation by state and local voters, to lawmaking by common law courts, to delegated lawmaking by cities, to rules imposed by private entities and given the force of law, to lawmaking on sensitive subjects by public entities that are deliberately insulated from day-to-day interference by the voters’ elected representatives. Non-delegation theorists need to explain why a doctrine would forbid entrusting policies to full-time politically accountable officials but allow turning policy choices over to private interests or their representatives.

This does not deprive nondelegation theory of all usefulness, as long as it does not overstate its reach. Theorists who choose to continue their single-minded concentration on Washington, D.C., can confine their arguments to the relationship between Congress and the executive branch under the United States Constitution and refrain from deducing conclusions from more widely shared principles like separation of powers or general democratic theory. At the same time, theorists can recognize that other constitutional principles constrain delegations of authority by elected representatives, sometimes toward more political responsibility and sometimes toward less. There is not just one rule on delegation but several, depending on the relevant constraint.

Whatever federal courts may do about congressional delegations, state courts need to test a particular allocation of governmental or quasi-governmental power in their states against the relevant constraints that are explicit or implicit in their individual state constitutions: equal representation of the state’s citizens that are affected by the exercise of the granted power, separation of private and public roles in exercising it, independence from immediate political direction for functions involving freedom of expression and religion or the integrity of the political process itself and for judicial functions. In sum, the following propositions could be starting points toward a more nuanced theory of delegated authority and its limits:

1. Unconditional delegation of open-ended lawmaking power to a single executive, elected or not, amounts to legislative abdication.[84] It is the essence of modern dictatorships and incompatible with a republican form of government.

2. A legislature (or the voters) may delegate wide lawmaking power to territorially defined entities if their governing bodies are elected on the same principles of equality as the legislature and if their membership is large enough, in relation to their delegated powers, to represent and to deliberate on the diversity of interests and viewpoints of the affected constituencies.

3. In principle, managerial and regulatory administration are subject to similar standards governing delegation and appropriate procedure when the managed program imposes significant effects on identifiable nongovernmental persons or interests.

4. Guarantees of freedom of opinion, inquiry, and expression, however, constrain delegation of wide discretion to government regulators. Yet the same guarantees, in order to secure editorial, artistic, and scientific freedom in public institutions, also call for insulating such institutions from direct political controls by leaving their professional leaders wide discretion over the intellectual and cultural contents of their programs.

5. Authority to make rules enforceable as public law may be delegated to regulatory or managerial agencies composed of interested private persons only with adequate standards capable of further review, and with clear direction that the persons are to use their knowledge to serve the public rather than private interests.

6. When governments authorize private entities to organize large territorial or institutional communities, that authority is subject to the applicable principles governing public policymaking in political communities.

Propositions stated in such general terms are vulnerable to the test of concrete examples and need refinement. Here they are meant only to locate nondelegation theories on a broader agenda for defining tests of legitimate lawmaking with the consent of the governed.


* Senior Judge, Oregon Supreme Court (1977-1990); Distinguished Scholar in Residence, Willamette University College of Law.

[1] These comments were prepared for the symposium “The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives” held at the Benjamin N. Cardozo School of Law on Mar. 19, 1998.

[2]See Gary J. Greco, Standards or Safeguards: A Survey of the Delegation Doctrine in the States, 8 ADMIN. L.J. AM. U. 567, 567 (1994) (“[T]he delegation doctrine in the states reflects the history of the delegation doctrine in the federal government.”

[3] The Constitution of Oregon provides:

The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.

OR. CONST. art. III, § 1.

[4] Besides the commonly elected state treasurers, secretaries of state or auditors, attorneys general, and superintendents of public instructions, various states have independently elected commissioners of agriculture (e.g., Louisiana, see LA. REV. STAT. ANN. § 3:4 (West 1998), and South Carolina, see S.C. CODE ANN. § 46-3-40 (Law. Co-op. 1976)); commissioners of corporations (e.g., Arizona, see ARIZ. CONST. art. XV, § 1, and Virginia, see VA. CODE ANN. § 12.1-6 (Michie 1998) (three commissioners elected by the General Assembly)); commissioners of insurance (e.g., California, see CAL. INS. CODE § 12,900 (West 1998), Delaware, see DEL. CODE ANN. tit. 18, § 302(b) (1998), and Louisiana, see LA. CONST. art. IV, § 3); commissioners of labor (e.g., North Carolina, see N.C. GEN. STAT. § 95-2 (1998), and Oregon, see OR. REV. STAT. § 651.030 (1990)); commissioners of public lands (e.g., Arkansas, see ARK. CONST. amend. LXIII, § 1, Washington, see WASH. CONST. art. III, § 1); commissioners of railroads, transportation, or utilities (e.g., Kentucky, see KY. CONST. § 209, Mississippi, see MISS. CODE ANN. § 77-1-1 (1998), and Texas, see TEX. CONST. art. XVI, § 30); and commissioners of taxation (e.g., North Dakota, see N.D. CONST. art. V, § 2).

The authority of elected executive officials whom governors cannot discharge needs to be considered in interpreting the responsibility of American chief executives, including the President, to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3.

[5]See generally Richard Briffault, Who Rules at Home?: One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339 (1993); John Devlin, Toward a State Constitutional Analysis of Allocation of Powers: Legislators and Legislative Appointees Performing Administrative Functions, 66 TEMP. L. REV. 1205 (1993).

[6]See generally Hans A. Linde, Courts and Torts: “Public Policy” Without Public Politics, 28 VAL. U. L. REV. 821 (1994) (citing sources). This large sector of lawmaking cannot be distinguished on grounds that “common law grows out of community custom.” DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 157 (1993). The gospel of legal realism led modern courts to replace the fiction of law as custom and to assert a continuing mandate to change judge-made rules on the grounds of policy, often by abrupt reversals creating or abolishing defenses, immunities, or measures of damages, sometimes after legislative rejection of the proposed change and sometimes announcing the change only for future cases, like statutes. See Alvis v. Riber, 421 N.E.2d 886 (Ill. 1981) (applying new doctrine of comparative negligence in this case and prospectively).

Even where statutes have codified common law rules, some courts have asserted that the statutes also incorporate the assumption of continued judicial change. See, e.g., Li v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975) (“[T]he rule of liberal construction made applicable to the [statute] by its own terms together with the [statute’s peculiar character as a continuation of the common law permit if not require that [statute] be interpreted so as to give dynamic expression to the fundamental precepts which it summarizes.” (citations omitted)).

[7]See CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 2.2, at 22-33 (1986) (discussing inherent powers of courts to regulate lawyers). Courts have made rules compelling all lawyers admitted to practice to belong to and to finance a state bar organization. See, e.g., In re Integration of Neb. State Bar Ass’n 275 N.W. 265, 268 (Neb. 1937) (“The practice of law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to define and regulate its practice naturally and logically belongs to the judicial department of our state government.” Courts also have invalidated statutes limiting professional reexamination for lawyers. See Board of Comm’n of Ala. State Bar v. State ex rel. Baxley, 324 So.2d 256, 262 (Ala. 1975) (holding a statute that removed minimum standards for bar admission established by the Board of Bar Examiners as the arm of the court unconstitutional as invading the judicial sphere); see also Archer v. Ogden, 600 P.2d 1223 (Okla. 1979) (requiring lawyers to maintain an office or residence within the state).

[8] Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting) (citation omitted).

[9] A governor’s constitutional duty to take care that the laws are faithfully executed may even require him to remove a regional prosecutor who does not put the law into effect. See Johnson v. Pataki, 91 N.E.2d 214, 223-27 (N.Y. 1997) (holding that the Governor has constitutional power to supersede the District Attorney with the Attorney General in all investigations and proceedings arising out of the shooting of a certain police officer); Richard Perez-Pena, Split Court Backs Pataki’s Decision in a Capital Case, N.Y. TIMES, Dec. 5, 1997, at A1 (reporting on removal by the New York Governor George Pataki in 1997 of the Bronx County prosecutor who would not invoke the death penalty). When more than 40 years ago prosecutors would not enforce laws designed to prevent smoking by minors, the frustrated Oregon legislature, rather than turning to the governor, in turn made that nonperformance a crime punishable by a fine and forfeiture of office. See OR. REV. STAT. § 167.275 (1953), repealed by 1959 Or. Laws chs. 322, § 3.

State constitutions, except in Kansas and Massachusetts, direct governors to take care that the laws be faithfully executed, in words much like those contained in Article II, Section 3 of the United States Constitution. See U.S. CONST. art. II, § 3. Kansas dropped the text in 1972, when its constitution was amended to give the governor extensive original power to reorganize executive agencies subject to legislative disapproval.

[10] On the shift of discretion to prosecutors, see Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & CRIMINOLOGY 717 (1996).

[11]See KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969).

[12] The same distinction is important to the immunity for discretionary functions under tort claims acts. See David S. Fishback & Gail Killefer, The Discretionary Function Exception to the Federal Tort Claims Act: Dalehite to Varig to Berkovitz, 25 IDAHO L. REV. 291 (1988-1989); Osborne M. Reynolds, Jr., The Discretionary Function Exception of the Federal Tort Claims Act, 57 GEO. L.J. 81 (1968).

[13] The Declaration of Independence proclaimed that “to secure [inalienable] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

[14] Examples are initiatives that write tax limitations or costly penal programs into a state constitution, leaving officials without means to meet the needs of schools and other priorities.

[15] An old example of explicit interest representation in a federal agency is the National Railroad Adjustment Board, composed of 17 members chosen by carriers and 17 by their union representatives. See 45 U.S.C. § 153(a) (1994). Discussions of conflicts of interest and ex parte communications generally are placed under adjudications. See, e.g., PETER L. STRAUSS ET AL., ADMINISTRATIVE LAW, ch. 8, § 1 (9th ed. 1995). This doctrine of due process demands close analysis of decisions by local councils. See, e.g., 1000 Friends of Oregon v. Wasco County Court, 742 P.2d 39 (Or. 1987).

For discussion of the general ethical rules governing federal civil servants, see Cynthia Farina, Keeping Faith: Government Ethics & Government Ethics Regulation, 45 ADMIN. L. REV. 287 (1993).

[16]See, e.g., Joan Laatz Jewett, Forestry Panel Still Tied to Logging, OREGONIAN, Nov. 25, 1997, at A1 (questioning success of legislative efforts to reduce timber industry domination of board regulating uses of 650,000 acres of state forest lands).

[17] In 1966 California made its state bar a constitutional “public corporation.” CAL. CONST. art. VI, § 9. In 1997 controversies about the state bar’s activities, under a board of governors elected by lawyers, led Governor Pete Wilson to veto its funding, as well as various bills and reports recommending a new appointive board. In 1998 the state’s so called Little Hoover Commission commented on California regulatory boards generally:

Because of the independent status of the boards, there is no effective departmental oversight or control of board activities. Furthermore, many appointed board members are representatives and practitioners of the occupations and professions they license or regulate. These factors can leave the appearance — if not the reality — of a lack of state control and conflicts of interest, which in turn diminishes public interest in the State’s regulatory process. J. CLARK KELSO, A REPORT ON REFORM OF THE CALIFORNIA STATE BAR 8-10 (1998).

[18]See generally David M. Lawrence, Private Exercise of Governmental Power, 61 IND. L.J. 647 (1986) (citing sources).

[19] SCHOENBROD, supra note 6, at 16.

[20] Schoenbrod offers a distinction between the legislative power vested by Article I and other congressional lawmaking powers under Article IV and elsewhere, see id. at 186; but that explanation fails.

Article I, not Article II or Article IV, is the source of the vast range of national spending programs whose regulatory administration Schoenbrod proposes to exclude from his nondelegation standards, as well as of the delegated fiscal and monetary powers of the Treasury and the Federal Reserve Board. Would the nondelegation doctrine apply to Congress’ Article I power to raise and to regulate the armed forces? And what degree of delegation would be permitted under grants of lawmaking power in the Thirteenth, Fourteenth, Fifteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth Amendments?

Moreover, tying nondelegation to Article I fails because functionally similar types of delegation exist in the states whose legislatures have plenary rather than specified powers.

[21] In the 1980s, the Bonneville Power Administration (“BPA” led local public entities to contract with the Washington Public Power Supply System, whose failed nuclear power plants precipitated a historic failure in the system’s public bonds. See Donald G. Balmer, From Symbiosis to Synergy: A Case Study of Public and Private Electric Power in the Pacific Northwest, 13 ENVTL. L. 637, 653-56 (1983).

The relative importance of regulation and management surfaced again at the end of 1997, when the state public utility commission raised private power companies’s rates following BPA decisions on direct power sales to its industrial customers, calling BPA a “rogue agency that is not accountable to anyone.” Brent Walth, PGE Rates Increase by 12% in Oregon, OREGONIAN, Jan. 7, 1998, at A1.

When the Department of Defense decided to cut down smoking among military personnel by ending its longstanding subsidy of Post Exchange cigarette sales below market prices, the tobacco industry persuaded a congressional oversight panel on military morale to demand that the department obtain congressional assent to the price change, which the department denied it needed. See Bill McAllister, Pentagon Stands by Price Increase on Cigarettes Sold in Commissaries, WASH. POST, Oct. 17, 1996, at A7.

[22]See N.Y. COMP. CODES R. & REGS. tit. 9, § 4.28 (1983) (prohibiting discrimination based on sexual orientation in state employment and services); JAMES A. KUSHNER, FAIR HOUSING: DISCRIMINATION IN REAL ESTATE, COMMUNITY DEVELOPMENT, AND REVITALIZATION § 1.03 (2d ed. 1995) (discussing orders against discrimination in government-aided housing). In Oregon, a governor’s executive order, like New York’s led to passage of a contrary initiative measure, which in turn was invalidated by an intermediate court — a sequence in which the elected legislature played no role. See Merrick v. Board of Higher Educ., 841 P.2d 646 (Or. Ct. App. 1992).

[23] I do not overlook the enormous cultural and political importance of broadcasting, but without government regulation broadcasters would necessarily have coped with the essential problem of frequency interference on their own. The expanding new cable technologies reduce the “scarcity” rationale of broadcast regulation, leaving only the rhetoric of a metaphorical public “ownership” of the spectrum, usually mislabeled “airways.”

[24] The 104th Congress voted to outlaw this disfavored medical procedure when performed “in or affecting commerce,” although the House committee report on the bill did not explain or even mention its relationship to foreign, interstate, or Indian commerce. See H.R. REP. NO. 104-267 (1995).

[25]Cf. Planned Parenthood Ass’n v. Department of Human Res., 687 P.2d 785 (Or. 1984) (en banc) (holding that a legislative emergency board could not condition abortion funding on state agency’s adoption of criteria not provided in the authorizing statute).

[26] U.S. CONST. art. I, § 9; see N.J. CONST. art. VIII, § 2, ¶ 2; OR. CONST. art. IX, § 4. This is the source of the crucial legislative “power of the purse,” dramatized in the 1980s by the misuse of unappropriated funds to aid the opponents of the Nicaraguan regime in the “Iran-Contra” affair.

[27] In barring teachers from serving in the legislature, the Oregon Supreme Court held the public schools to be part of the state executive branch. See Monaghan v. School Dist. No. 1, Clackamas County, 315 P.2d 797 (Or. 1957). A specific amendment lifted the bar for educators.

Defenders of local control of schools for its own sake regret the modern dependence of schools in many states on state funding. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), Justice Lewis Powell, a former school board chairman, considered local control of the schools a sufficient “state interest” to justify inequality of educational resources among Texas school children. That view later was rejected in many states, including Texas, under the states’ constitutions.

Puzzles in identifying state funds that require appropriation extend beyond special districts to other legislatively empowered entities (e.g., statutory (“integrated” state bars) that are reluctant to be state “agencies.” See, e.g., 44 Op. Att’y Gen. 336 (Or. 1985) (stating that a statute excused the Oregon State Bar from depositing its funds with the State Treasurer without, however, deciding the validity of that statute).

[28]See Robert A. Caro, The City-Shaper, NEW YORKER, Jan. 5, 1998, at 38.

[29] Robert A. Caro wrote about the assumptions that he shared with other journalists:

In the terms in which I had always thought about New York politics, elected officials — mayors and governors in particular — were the principal repositories of the political power that plays so significant a role over our lives: in a democracy, after all, ultimate power theoretically comes from the ballot box. But Robert Moses had never been elected to anything. And yet Robert Moses had held power for 44 years, between 1924 and 1968, through the administrations of five mayors and six governors, and, in the fields in which he chose to exercise it, his power was so enormous that no mayor or governor contested it.

Id. at 43.

[30] Once independent from the Crown, the United States began with a Congress and only later added a chief executive; but once established, this executive would succeed to the unarticulated but familiar assumptions distinguishing laws governing private activities from managerial stewardship of public activities.

[31]See 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 2.6 (1986); Edmund H. Schwenk, The Administrative Crime, Its Creation and Punishment by Administrative Agencies, 42 MICH. L. REV. 51 (1943); cf. State v. Curtis, 52 S.E.2d 364 (N.C. 1949) (holding that the District Board of Health exceeded its delegated authority in prescribing criminal punishment for selling milk without a license).

Some laws authorizing the Executive to levy whatever tax will produce the needed revenue might well be invalid, but lawmakers do delegate authority to set the level of a tax, ranging from property taxes for schools to tariffs on imports. See Skinner v. Mid-America Pipeline, 490 U.S. 212, 221-23 (1989). Moreover, legislators can use binding contracts for spending commitments that compel future taxes, as Congress did in the Water Pollution Control Act, 33 U.S.C. §§ 1281-1292 (1994), over President Nixon’s veto. See Train v. City of New York., 420 U.S. 35 (1975); see also Oregon State Police Officers’ Ass’n v. State, 918 P.2d 765 (Or. 1996) (en banc) (invalidating a measure ending negotiated employee pension payments as impairment of contract obligation).

[32] See Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964).

[33] The diverse outcomes are illustrated in the nineteenth-century constitutions of the separate German states. See CONSTITUTIONS OF THE GERMAN EMPIRE AND GERMAN STATES (Edwin H. Zeydel ed., 1919).

[34] The terms are rough equivalents of the German term Gesetzesvorbehalt. The concept arose as a legal problem only when the autocratic sovereign’s monopoly of authority was divided among separate institutions, assigning lawmaking to a legislature. See Fritz Ossenbühl, Die Quellen des Verwaltungsrechts, in ALLGEMEINES VERWALTUNGSRECHT 66-71 (Hans-Uwe Erichsen & Wolfgang Martens eds., 8th ed. 1988) (discussing contemporary disputes about responsibility for school curricula, nuclear energy, and other controversies). German commentators debate whether this reservation to statutory norms applies to administration of public services (Leistungsverwaltung) as well as regulatory administration (Eingriffsverwaltung). See, e.g., Ingo von Münch, Verwaltung und Verwaltungsrecht, in ALLGEMEINES VERWALTUNGSRECHT, supra, at 23-35. For a summary in English, see Uwe Kischel, Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law, 46 ADMIN. L. REV. 213, 228-46 (1994).

French constitutional tradition distinguishes between laws requiring parliamentary enactment (lois) and the executive government’s power to issue regulations (reglements). See JOHN BELL, FRENCH CONSTITUTIONAL LAW 81-86 (1992). The need for a division between the power to enact major political directives in the form of laws and the power to carry these out by rules and orders is common to large systems regardless of the separation of powers or democratic practices of open elections and debates between opposing parties. This occurs even when political power is centralized in the Communist Party. See, e.g., Conita S.C. Leung, Conceptual and Constitutional Bases for Chinese Administrative Law, BULL. AUSTR. LEG. PHIL. (spec. ed. 1992) (describing three competing theories of the relation between legislation and administrative rulemaking in China).

[35] Thus, when he was a Massachusetts judge, Justice Holmes viewed Boston Commons like private land, see Commonwealth v. Davis, 39 N.E. 113 (Mass. 1895), and public employment the same as private employment, see McAuliffe v. Mayor of New Bedford, 29 N.E. 517 (Mass. 1892).

On the same view, the Supreme Court’s current “market participant” doctrine allows state operating agencies to discriminate against interstate commerce in ways that they could not impose upon analogous private operations. See White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204 (1983) (Commerce Clause). But see United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984) (Privileges and Immunities Clause).

[36]See generally Marla E. Mansfield, The “New” Old Law of Judicial Access: Toward a Mirror-Image Nondelegation Theory, 45 ADMIN. L. REV. 65 (1993) (discussing the relation between standing and delegation of nonregulatory responsibility in contemporary Supreme Court opinions). State courts, however, allow suits by taxpayers on minimal showings of a financial cost or impact of the challenged action, as well as suits by voters for some purposes.

[37]See generally Hans A. Linde, A Republic ... If You Can Keep It, 16 HASTINGS CONST. L.Q. 295, 321 n.134 (1989) (citing sources). The same is true in European constitutional tribunals. See id. at 311-12.

The circumstances under which members of Congress have standing to litigate compliance with the Constitution or laws remain disputed. When a number of Representatives alleged failure to comply with a statutory scheme for evaluating missile defense, the district court found that their claim was premature before exhaustion of further efforts to resolve their differences with the executive branch.

If and when that day comes, this Court will revisit the critical issues presented here. The Court does not believe that the executive can blatantly defy the Congress where the national security may be at stake. Under such circumstances, this Court will not condone the executive branch defying the explicit laws enacted by the Congress.

Spence v. Clinton, 942 F. Supp. 32, 40 (D.D.C. 1996) (Sporkin, J.) (footnote omitted).

Eleven states also provide for advisory opinions of the state’s highest judges to legislatures or governors. See Mel A. Topf, The Jurisprudence of the Advisory Opinion Process in Rhode Island, 2 ROGER WILLIAMS U. L. REV. 207, 214, 254 (1997).

[38]See generally Hans A. Linde, Constitutional Rights in the Public Sector: Justice Douglas on Liberty in the Welfare State, 40 WASH. L. REV. 10 (1965); Reich, supra note 32; William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1968). Remnants of the false analogy are preserved in a Supreme Court decision excusing states from constitutional constraints when they act as market participants. See White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204 (1983).

In 1969 the Administrative Conference of the United States recommended ending the exemption of all matters “in relation to public property, loans, grants, benefits, or contracts” from the rulemaking procedures of the Administrative Procedure Act, on the basis of a committee report by Professor Arthur Earl Bonfield that documented the magnitude and public importance of the exempted government policies. Administrative Conference of the United States, Recommendation No. 16 — Elimination of Certain Exemptions from the APA Rulemaking Requirements, 1 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 306 (1971), reprinted in Arthur Earl Bonfield, Public Participation in Federal Rulemaking Relating to Public Property, Loans, Grants, Benefits, or Contracts, 118 U. PA. L. REV. 540, 611 (1970).

[39]Compare Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (finding no standing for the environmental organization because its members did not suffer injury in fact), with United States v. S.C.R.A.P., 412 U.S. 669 (1973) (recognizing standing for users of outdoor recreation alleging harm from an increase in trash recycling costs), and Sierra Club v. Morton, 405 U.S. 727 (1972) (finding no standing for conservation association as such). Cf. Marbet v. PGE, 561 P.2d 154 (Or. 1977) (finding standing for public policy parties once admitted in administrative process).

[40] Examples of such entities are the Tennessee Valley Authority; the Port Authority of New York and New Jersey; public housing authorities; state university boards; REA co-operatives to distribute electric power in rural areas; commissions formed to promote particular crops or other products; corporations to operate or finance postal, rail, or satellite services, public broadcasting, and legal services; numerous districts for schools, fire, water, sewer, transit, utilities, and hospital services; the National Endowments for the Arts and the Humanities; the National Science Foundation (“NSF” the National Institutes of Health (“NIH” and the Smithsonian Institution.

Aside from the territorial nature of districts, the choice of label has little legal significance. The entities, however, are commonly headed by multi-member boards, though NSF and NIH have directors.

[41] In one example, the Oregon Health Sciences University, previously a unit of the State System of Higher Education, was transformed into a public corporation in 1995. The statute that spelled out the fiscal and managerial details of this change defined the public corporation as an entity created by the state to carry out public missions and services with “operating flexibility ... while retaining principles of public accountability and fundamental public policy,” under a board appointed by the governor; the statute also purported to declare that the corporation is not a state agency for purposes of the state’s constitution. OR. REV. STAT. §§ 353.010, 353.020 (Supp. 1998).

For a discussion of prison privatization, see Joseph E. Fried, Note, Making Prisons Private: An Improper Delegation of a Governmental Power, 15 HOFSTRA L. REV. 649 (1987); Ira P. Robbins, The Impact of the Delegation Doctrine on Prison Privatization, 35 UCLA L. REV. 911 (1988).

[42]See Michael Pollan, Town-Building Is No Mickey Mouse Operation, N.Y. TIMES, Dec. 14, 1997, at 56. The City of Celebration, Florida is a private town that Disney heralds as an experiment in “community” building while maintaining Disney’s “legendary obsession with control.” Id. at 58. The Article quotes one resident: “[T]here is no mechanism to change things. The only person you can call is a corporate vice-president, but he’s not interested in the school, not really. He is interested in selling real estate.” Id. at 63. The article notes that master-planned communities privatize municipal services, including street lighting, rule enforcement, and parts of public safety, managed by a homeowners’ association. “Homeowners’ associations are now the fastest-growing form of political organization in the country, forming a kind of alternative political universe in which one of every eight Americans now resides.” Id. at 78. The article also notes that all homeowners must sign a quasi-Constitution that “guarantee[s] that [the homeowners’ association] will remain a creature of Disney’s for as long as the company wishes ....” Id. at 80. The author considers: “Disney’s boldest innovation at Celebration is to have established a rather novel form of democracy, one that is based on consumerist, rather than republican, principles, [whose] measure of democracy is not self-rule but responsiveness ....” Id. at 81. Among many residents, “politics is the enemy of community, rather than its natural expression.” Id. See generally RESTATEMENT OF THE LAW (THIRD) OF PROPERTY: SERVITUDES §§ 6.1-12 (Tentative Draft No. 7, 1998) (common interest communities).

[43] Examples of federal corporations are the Tennessee Valley Authority and the United States Post Office; and examples mixing public and private capital are the First and Second Bank of the United States and the Communication Satellite Corporation. See ANNMARIE H. WALSH, THE PUBLIC’S BUSINESS, THE POLITICS AND PRACTICES OF GOVERNMENT CORPORATIONS (1978); Stanley Siegel, The United States Post Office, Incorporated: A Blueprint for Reform, 66 MICH. L. REV. 615 (1968). Workers’ compensation insurance is another important social program sometimes transmuted from a state agency to a nonprofit or public corporation.

[44]See generally WOLFGANG GASTON FRIEDMANN, LAW IN A CHANGING SOCIETY (1959); THE PUBLIC CORPORATION: A COMPARATIVE SYMPOSIUM (Wolfgang Gaston Friedmann ed., 1954). State constitutions often forbid public investment in private enterprises. See, e.g., CAL. CONST. art. XVI, § 6.

[45] Direct election is common for school boards and boards for other districts, including electric utilities. Plebiscites are used not only for public approvals of bond measures and municipal programs but sometimes for federal agricultural price support programs. Managing boards are not categorically excluded from open meeting and open records laws.

Judicial review and legislative oversight are valuable controls after the fact, but in principle they are not devices to shape the substance of a discretionary policy.

[46] Other examples are the roles of student “governments” in public universities and tenant representatives in the management of public housing.

[47]See Greeley Police Union v. City Council, 553 P.2d 790 (Colo. 1976) (en banc); Dearborn Fire Fighters Union v. City of Dearborn, 231 N.W.2d 226 (Mich. 1975); City of Roseburg v. Roseburg City Firefighters, 639 P.2d 90 (Or. 1981) (en banc).

[48] Moreover, directors elected by and representing the private Federal Reserve Banks serve on the crucial Federal Open Market Committee. See Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 NW. U. L. REV. 62, 84 (1990); Note, The Federal Open Market Committee and the Sharing of Power with Private Citizens, 75 VA. L. REV. 111 (1989).

[49] 1971 PUB. PAPERS 1174 (President Nixon).

[50] The Regents of the University of California constitute a “corporation ... with full powers of organization and government, subject only to such legislative control as may be necessary to insure” compliance with listed financial requirements. CAL. CONST. art. IX, § 9(a). Seven regents are ex officio members, including the state’s political leaders, and 18 are appointed for 12 year terms. See id. art. IX, § 9(b).

The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs, and no person shall be debarred admission to any department of the university on account of race, religion, ethnic heritage, or sex.

Id. art. IX, § 9(f).

[51] 553 P.2d 1152 (Cal. 1976), aff’d and rev’d in part, 438 U.S. 265 (1978).

[52]See id. at 1158.

[53] U.S. CONST. amend. XIV.

[54]See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

[55]See CAL. CONST. art. I, § 31 (California Civil Rights Initiative).

[56]See Symposium on Academic Freedom, 66 TEX. L. REV. 1247 (1988); William W. Van Alstyne, Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review, LAW & CONTEMP. PROBS., Summer 1990, at 79. The Supreme Court referred to academic freedom in Keyishian v. Board of Regents, 385 U.S. 589 (1967).

[57]See U.S. CONST. art. IV, § 4. The text obligates the United States to guarantee every state a republican form of government, but the original form and Convention debate of the Guarantee Clause make clear the constitutional duty of the states themselves to have and to maintain such governments. See 5 DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION, IN THE CONVENTION HELD AT PHILADELPHIA IN 1787, at 332-33 (Jonathan Elliot ed., 2d ed. 1968); see also Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175 (1874).

[58] OR. CONST. art. I, § 21.

[59]Id. art. I, § 20. The parallel clause in the California Constitution was cited in Bakke v. Regents of University of California, 553 P.2d 1152 (Cal. 1976), but was passed over in order to reach the textually different federal equal protection clause.

[60]See OR. CONST. art. XI, §§ 6, 8-9. States adopted these constraints in response to the experience of political favoritism and undue private influence on lawmakers as well as financial losses, but their effect has been sharply limited by continued state and local competition for private economic development and by reliance on private delivery of publicly funded services.

[61] Pure territoriality is not a postulate of democratic theory. The European parliamentary model was designed for political parties representing diverse economic classes as well as districts and social views, as reflected in such names as the Labor, Peasant, Socialist, Communist, Christian, Liberal, and National Parties, and to further this perspective by various provisions for proportional representation. Democratic theory also must accommodate representation of divergent ethnic, linguistic, and religious populations that in some countries are geographically concentrated and in other countries are geographically diffused. One commentator observes that the tentative agreement of April 1998 concerning the future of Northern Ireland hinged on bridging over old-fashioned territorial nationalism while allowing true believers to maintain their traditional identity politics and long-term goals. See Fintan O’Toole, The Meanings of Union, NEW YORKER, Apr. 27-May 4, 1998, at 54.

Another problem for contemporary theory is lawmaking by popular referendum on initiative petitions in many states. See, e.g., Philip P. Frickey, The Communion of Strangers: Representative Government, Direct Democracy, and the Privatization of the Public Sphere, 34 WILLAMETTE L. REV. 421 (1998); Marci A. Hamilton, The People: The Least Accountable Branch, 4 U. CHI. L. SCH. ROUNDTABLE 1 (1997); Eric Lane, Men Are Not Angels: The Realpolitik of Direct Democracy and What We Can Do About It, 34 WILLAMETTE L. REV. 579 (1998); Frank I. Michelman, Protecting the People from Themselves: Or How Direct Can Democracy Be?, 45 UCLA L. REV. 1717 (1998).

[62]See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (invalidating executive order seizing steel industry plants in order to settle labor dispute). In 1997, when the governor of New Mexico undertook to put into effect his preferred welfare program when the legislature declined to enact it, he was swiftly corrected by the state supreme court. See State ex rel. Taylor v. Johnson, 961 P.2d 768 (N.M. 1998).

There is no room here to discuss executive powers such as declarations of martial law, seizures of private property for military use, or settlement of international disputes. The Supreme Court went to great lengths to find implicit congressional consent to the Iranian claims settlement that impaired private interests in Dames & Moore v. Regan, 453 U.S. 654 (1981).

State judges have examined whether letting a single elected official make as important a law as legislative districting is compatible with a republican form of government. See, e.g., In re Interrogatories Propounded by the Senate Concerning House Bill 1078, 536 P.2d 308, 315-18 (Colo. 1975) (en banc). That function, of course, is circumscribed by legal standards.

[63] The legislature needs to retain power to override local governments to avoid creating a “state within a state,” contrary to Article IV of the United States Constitution.

[64] Congress long ago delegated legislative power in federal territories and possessions to elected governments, and delegation to Indian tribes was sustained on grounds that they were not private voluntary organizations but had “attributes of sovereignty.” United States. v. Mazurie, 419 U.S. 544 (1975). Thus, invalidating federal delegation to elected boards for other public entities requires a specific constitutional basis, rather than an abstract theory.

It is not a new question. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1852), assumed that if regulation of navigation and pilots required national regulation, Congress could not redelegate that regulatory authority to states. When a later statute allowed states to regulate commerce in liquor in ways previously barred to them by Commerce Clause doctrine, the Supreme Court debated whether to call this an unlawful delegation or a permitted congressional determination that the matter did not demand a nationwide policy. See In re Rahrer, 140 U.S. 545 (1891) (sustaining the statute).

[65] For explanation of a “constitutional preference for legislative assemblies” by their diversity, despite a loss in rational lawmaking due to the growing size of a legislative body, see Jeremy Waldron, The Dignity of Legislation, 54 MD. L. REV. 633, 637 (1995) (reviewing the analyses of Condorcet, Madison, Descartes, Blackstone, Rousseau, J.S. Mill, and Bagehot). “Somewhere in our tacit theory of the authority of legislation is a sense that discussion and validation by a large assembly of representatives is indispensable to the recognition of a general measure of principle or policy as law.” Id. at 641.

[66] Whether an act of a city council, without separation of powers and acting by undifferentiated “ordinances,” is legislative or executive can be difficult to characterize but can have important consequences. Cf. Bogan v. Scott-Harris, 118 S. Ct. 966 (1998) (holding that city council members who approved the mayor’s recommendation to eliminate the department in which plaintiff was the sole employee were immune from liability under 42 U.S.C. § 1983), rev’d 134 F.3d 427 (1st Cir. 1997).

[67] I mean a law imposing sanctions or liability at all, not one setting standards to which a statute or common law attaches those consequences. The question concerns local entities with general lawmaking powers, rather than boards serving particular functions, which must explain how their acts relate to their delegated tasks. See, e.g., Neuhaus v. Federico, 505 P.2d 939 (Or. Ct. App. 1973) (holding that student hairstyles are not within school board’s authority). For discussion of intrinsic limits on local lawmaking to govern private obligations, see Gary T. Schwartz, The Logic of Home Rule and the Private Law Exception, 20 UCLA L. REV. 671 (1973).

[68]See CAL. CONST. art. IX, § 9.

[69] Thus, vagueness is an anomalous charge against a statute directing the National Endowment for the Arts (“NEA” to consider general American values and standards, when neither the plaintiffs nor the court would find legislative specification of ineligible artworks more satisfactory. See Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996), rev’d 118 S. Ct. 2168 (1998).

The statute lists 10 affirmative standards and objectives for NEA grants. See 20 U.S.C. § 954(c) (Supp. II. 1996). The challenged text requires the NEA chairperson to “ensure that (1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” Id. § 954(d).

[70]See, e.g., City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (invalidating ordinance that granted mayor standardless discretion to permit newspaper racks on public property). The rejection of politically stated standards in one case is consistent with the demand for standards in the other, because valid standards must be neutral toward the content and viewpoints of the publication.

[71]See Glickman v. Wileman Bros. & Elliot, 521 U.S. 457 (1997) (rejecting objections by fruit growers and processors against agricultural marketing order requiring them to contribute to undesired product advertising); Burt v. Blumenauer, 699 P.2d 168 (Or. 1985) (en banc) (discussing legal constraints on government advocacy). See generally MARC G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983).

[72]See OR. CONST. art. I, § 21. The section was held to preclude statutory force for private marketing agreements. See Van Winkle v. Fred Meyer, Inc., 49 P.2d 1140 (Or. 1935); see also IND. CONST. art. I, § 25; KY. CONST. § 60.

Whether or not a particular provision is technically violated, the eighteenth and nineteenth-century American constitutions presupposed a principled division between the public pursuit of public ends and the private pursuit of private ends. Contrast European practices of relying on nongovernmental professional and trade associations in administering government programs, as expressly recognized in the Swiss constitution: “The competent business organizations should also be consulted before the enactment of the laws of execution. They may be asked to cooperate in the execution of these measures.” FEDERAL CONSTITUTION OF THE SWISS CONFEDERATION art. 32, reprinted in 3 CONSTITUTIONS OF NATIONS (2d ed. 1956).

A critic of California initiatives observes that under one amendment assessments for public amenities like street lighting must be weighted according to the proportion of tax costs. “The more valuable the property, the more votes the owner had: The owner of a parcel who will have to pay $5,000 gets fifty times the number of votes as the one who has to pay only $100, thus giving large corporations a vastly disproportionate voice. Those who own no property get no vote.” PETER SCHRAG, PARADISE LOST 170 (1998).

[73]See 2 THOMAS LEE HAZEN, TREATISE ON THE LAW OF SECURITIES REGULATION § 10.2, at 18-19 (3d ed. 1995). Examples of congressional delegation to private groups or their representatives from the New Deal to more recent times are collected in Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 NW. U. L. REV. 62 (1990).

[74]See NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., MANUAL 151, 159 (1997). Much depends, of course, on whether assigning a role to private organizations is characterized as delegation of public authority or as a legal endorsement of essentially private arrangements. The characterization often reflects unarticulated baselines of public and private functions. If a governmental agency will enforce an organization’s decisions as an application of the agency’s rules and policies, these cannot avoid the tests governing delegations. See, e.g., Gumbhir v. Kansas State Bd. of Pharmacy, 618 P.2d 837 (Kan. 1980) (accreditation by professional association); Hillman v. Northern Wasco County People’s Util. Dist., 323 P.2d 664 (Or. 1958) (regulation adopting private electrical standards). State courts also have found statutes incorporating future federal standards to be improper delegations. See DANIEL R. MANDELKER ET AL., STATE AND LOCAL GOVERNMENT IN A FEDERAL SYSTEM 676-99 (4th ed. 1996).

Private arrangements enforced under contract or property law sometimes are held to constitutional standards when they assume or resemble public functions, such as large-scale land use controls. See Shelley v. Kraemer, 334 U.S. 1 (1948). Schools and health facilities have been placed in either category even when publicly funded, perhaps depending on the nature of the claim more than of the function. Compare Norwood v. Harrison, 413 U.S. 455 (1973) (holding that state may not provide textbooks for racially discriminatory schools), with Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding that the first amendment and due process do not protect teachers in a private school operated largely with public funds), and Blum v. Yaretsky, 457 U.S. 991 (1982) (holding that due process does not apply to Medicaid-supported nursing homes). See also State v. Okeke, 745 P.2d 418 (Or. 1987) (en banc) (holding evidence obtained from a search of a person involuntarily detained in city-supported private detoxification center inadmissible).

[75]See Hadley v. Junior College Dist. of Metro. Kan. City, 397 U.S. 50 (1970); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969).

[76]See Associated Enters., Inc. v. Toltec Watershed Improvement Dist., 410 U.S. 743 (1973); Salyer Land Co. v. Tulare Lake Basin Water Stor. Dist., 410 U.S. 719 (1973).

[77]See Ball v. James, 451 U.S. 355 (1981).

[78]Salyer Land, 410 U.S. at 741-42 (Douglas, J., dissenting). Professor Lawrence H. Tribe notes that the district’s board had declined by a six to four vote to divert flood waters threatening the basin in 1969, causing the flooding of 88,000 of the basin’s 193,000 acres, including the appellant’s residence, when the largest landowner controlling the Tulare district’s board had a major stake in keeping the waters from flooding another district instead. See LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-58, at 1668 (2d ed. 1988).

[79] The invocation of the federal equal protection doctrine to claim rights to vote on decisions affecting outsiders usually has failed and may not be the only issue. See, e.g., Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978); MANDELKER, supra note 74, at 755-60 (citing cases).

A separate issue is the selective use of referenda in contexts of prejudice against minorities. Compare Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), with James v. Valtierra, 402 U.S. 137 (1971), and City of Eastlake v. Forest City Enters., 426 U.S. 668 (1976).

[80] Separate voting by ethnic, linguistic, religious, or ancestral affiliation (including cantonal origin, as in Switzerland) does not fit American political individualism, with the possible exception of Native American identity. The Voting Rights Act presupposes the territorial structure of elections.

Groups, such as university student bodies, elect representatives for purposes that resemble negotiations more than decisional power, although a few German universities in the 1960s and 1970s experimented with boards elected with the votes of professors, assistants, and nonacademic employees alike.

[81] The casebooks often illustrate the distinction by two characteristically opaque opinions by Justice Holmes, in Londoner v. City of Denver, 210 U.S. 373 (1908), and Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915).

[82] Compare the composition of the professional boards that was held unsuitable for disciplinary adjudication in Gibson v. Berryhill, 411 U.S. 564 (1973), but sustained for rulemaking in Friedman v. Rogers, 440 U.S. 1 (1979).

[83] For divergent state court reactions to laws giving private groups a special role in occupational licensing, see Bayside Timber Co. v. Board of Supervisors, 97 Cal. Rptr. 431 (Ct. App. 1971) (invalidating forest practice act delegating rulemaking to boards of timber owners); Rogers v. Medical Ass’n 259 S.E.2d 85 (Ga. 1979) (invalidating provision for medical association nomination of state medical board members); Humane Soc’y of the United States v. New Jersey Fish & Game Council, 362 A.2d 20 (N.J. 1976) (sustaining board composed of nominees of private associations). See also Lawrence, supra note 18.

[84] Presidential regulation of industrial wages by an order seizing the steel industry was invalidated in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Later the Supreme Court took pains to infer congressional assent to presidential acts that affected private interests by international agreement. See Dames & Moore v. Regan, 453 U.S. 654 (1981) (sustaining executive orders to carry out settlement of claims between Iran and the United States).

Delegation to a single official, such as a secretary of state, of authority to draw legislative district lines under legal standards is not plenary or open-ended lawmaking authority, and it was declared compatible with republican government. See In re Interrogatories Propounded by the Senate Concerning House Bill 1078, 536 P.2d 308, 315-18 (Colo. 1975) (en banc).


Contents | Text Version

























Popular Pages