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Tuesday, December 22, 2020

Divesting Power

Robert Jackson's brief in Currin v. Wallace argued that there was no limit on Congress's power to delegate power to executive agencies. But he also said that Congress could not alienate its power:

It would appear elementary that no department can divest itself of the power thus vested in it. In other words, there can be no alienation of power. Delegation, however, stops far short of divesting or alienation. To turn over to a body created by and responsible to the Congress a defined and limited measure of power, or a power over a given subject or object, at all times subject to recall and supervision by Congress, is in no sense a divesting or alienation of its power.

Later on Jackson added that the "only limitation which seems reasonable to imply is that any delegation must stop short of a divestiture of power or an alienation of power. Such would be contrary to the provisions and plan of the instrument."

Here's the head-scratcher: How exactly can Congress formally divest itself of power? Refusing to exercise a power for long enough could be understood as de facto alienation, but that's rather hard to assess. Likewise, a congressional delegation with no supervision might be alienation even if Congress retains the right to supervise, much as trademark law says that "naked licenses" are invalid. But how could that concept lead to a judicially manageable standard? "Naked licensing" is hardly ever enforced for trademarks nowadays.

A formal alienation of power, I think, could happen only if Congress gives power over an irrevocable decision. Suppose Congress gave the Secretary of the Interior the power to admit new states. She then decides to admit Puerto Rico, Guam, and the Virgin Islands. Statehood admissions cannot be repealed. Even though Congress could revoke the grant of statehood recognition for future states, they could not do anything about a prior decision to admit a state. Even then, though, you could say that the power is not alienated because Congress exercises supervision over the Secretary of the Interior.

In short, the alienation limitation is probably just theoretical or would end up involving a separate constitutional claim. Tomorrow I'll talk about why Jackson thought there was no limit on Congress's ability to delegate power to executive agencies. Working title for this paper, BTW, is "Robert Jackson's Non-Delegation Doctrine."


Posted by Gerard Magliocca on December 22, 2020 at 11:01 AM | Permalink


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Posted by: Ahram for Men in Lahore | Dec 27, 2020 1:24:28 AM

This makes me think about Justice White's wise dissent in INS v. Chadha. In many ways, that's the case where the Court transformed many Congressional delegations of power into de facto divestitures by prohibiting Congress from reserving any unilateral checks on delegated power.

At bottom it was Chadha that brought us bizarre inversions of the Constitutional order like Trump getting to veto Congress's attempt to overturn the declaration of emergency to build the wall. What a world where the effort to preserve bicameralism and presentment brings it about that the President gets to unilaterally appropriate money and make Congress get past all the veto points in order to stop it rather than require the other way around.

Posted by: Paul Gowder | Dec 22, 2020 6:24:13 PM

It is tangential, but the over 100 years territorial status of Puerto Rico et. al. is striking, especially given a broad earlier understanding that territory would eventually become states.

Constitutional understandings, especially related to things not concretely spelled out, do change over time. This is also something that is addressed in at least two books by the author of this piece.

Posted by: Joe | Dec 22, 2020 12:01:24 PM

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