CARDOZO LAW REVIEW [Vol. 20:823 1999]
STRUCTURES AND TERMS OF CONSENT:
DELEGATION, DISCRETION, SEPARATION OF
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, 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. A wider focus helps both national theory and the
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, that is far from a complete
description. States then split executive authority among separately elected
administrators who exercise authority independent of the states’
governors. 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. 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.
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
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. 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. Criminal law
is the harshest of regulatory sanctions, yet decentralized structures permit
the widest discretion in applying the least delegative laws.
So discretion rather than delegation could be the scale for mapping the
territory, as Kenneth Culp Davis showed thirty years ago. 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. 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. 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. 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. 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
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. 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.
These are problematic delegations of public authority to private groups
rather than legislative delegation to executive officials. Before pursuing them further, let us turn to the
dubious distinction between delegation in regulatory and in managerial
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. What
justifies such a distinction in legitimate lawmaking?
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.
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. 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. While Congress
dismantles regulation of commercial enterprise, it invokes the commerce power
instead for marginal but politically potent non-economic issues like banning
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.
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. 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. 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. 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.
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
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.
Taxes and crimes remain the most questionable subjects of
delegation. 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” of the commercial and
industrial age. 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.
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
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. Standing doctrine reinforces this
split vision of delegation when it allows review only as protection against
injury and excludes other claims to lawful government. 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.
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.” 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. 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. 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. 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, 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. 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
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 — 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. 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
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. 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,” 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
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. 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, the faculty of one professional school set aside
sixteen places in the entering class for minority applicants. 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. 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. 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. 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
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
The United States Constitution requires the states to maintain
republican forms of governments, 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,”
as well as any grant of a privilege or immunity “which, upon the same
terms, shall not equally belong to all citizens.” They also forbid the state and local governments to
invest in corporations or to assume their debts. 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
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. 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. 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
States invoke one legitimizing characteristic of the legislature when
they transfer authority to independently elected collegial bodies. 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. Broad delegations to elected
subgovernments in the states, however, do involve issues of structure and of
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. 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, but are three persons
an adequate legislature for regulating private behavior by penal ordinances or
civil liability? 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
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. 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. 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. 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
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. 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. Since 1996
regulation has been further delegated to a new subsidiary, NASD Regulation,
Inc., whose board is an equal mix of public and industry
Federal equal protection doctrine has been equivocal. The Supreme Court
held that elections in education districts could not be limited to parents and
taxpayers, 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. A later decision
reaffirmed that voting could be limited to landowners for districts performing
essentially business rather than governmental functions.
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.” Giving
landowners a vote or a veto on annexations or land use plans shows the problem
in a wider context. 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
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. 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. 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,
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. 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
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
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
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.
 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.
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
 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.
 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.
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).
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)).
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).
 Morrison v. Olson, 487 U.S. 654, 706
(1988) (Scalia, J., dissenting) (citation omitted).
 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.
 On the shift of discretion to
prosecutors, see Robert L. Misner, Recasting Prosecutorial Discretion,
86 J. CRIM. L. & CRIMINOLOGY 717 (1996).
See KENNETH CULP DAVIS,
DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969).
 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).
 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).
 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.
 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).
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).
 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).
See generally David M. Lawrence,
Private Exercise of Governmental Power, 61 IND. L.J. 647 (1986) (citing
 SCHOENBROD, supra note 6, at
 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.
 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
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.
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).
 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.”
 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).
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
 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”
 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
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
See Robert A. Caro, The
City-Shaper, NEW YORKER, Jan. 5, 1998, at 38.
 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.
 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.
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).
 See Charles A. Reich, The New
Property, 73 YALE L.J. 733 (1964).
 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.,
 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).
 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).
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.
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.)
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).
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
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,
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).
 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
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.
 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).
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
 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.
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.
 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
 Other examples are the roles of student
“governments” in public universities and tenant representatives in
the management of public housing.
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).
 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).
 1971 PUB. PAPERS 1174 (President
 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).
 553 P.2d 1152 (Cal. 1976),
aff’d and rev’d in part, 438 U.S. 265 (1978).
See id. at 1158.
 U.S. CONST. amend. XIV.
See Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265 (1978).
See CAL. CONST. art. I, §
31 (California Civil Rights Initiative).
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).
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).
 OR. CONST. art. I, § 21.
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.
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.
 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
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
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
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
 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.
 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).
 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.
 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).
 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).
See CAL. CONST. art. IX, §
 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
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).
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.
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).
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).
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.
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
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
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).
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).
See Ball v. James, 451 U.S. 355
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.
 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).
 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.
 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).
 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).
 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.
 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
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