DELEGATED LEGISLATION IN AMERICA—PROCEDURE AND SAFEGUARDS
| Date | 01 October 1948 |
| Published date | 01 October 1948 |
| Author | Bernard Schwartz |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00101.x |
DELEGATED LEGISLATION
IN
AMERICA-
PROCEDURE AND SAFEGUARDS
THE
authority of administrative agencies to make rules and regula-
tions having statutory effect is a power of enormous consequences.
In
its effect upon the community, its exercise is .of scarcely less
importance than the actions
of
the Legislature itself. Rules and
regulations, no less than statutes, lay down patterns of conduct to
which those affected must conform.
'
Unlike an administrative
order or a court judgment adjudicnting the rights of individuals,
which is binding only on the parties
to
the particular proceeding,
n
valid exercise of the rule-making power is addressed to and sets
a standard of conduct for nll to whom its terms apply.
It
operates
as such in advance of the imposition of snnctions upon any par-
ticular individual.
It
is common experience that men conform their
conduct
to
regulations
by
governmental authority
so
as
to
avoid
the unpleasant legal consequences which failure to conform
entails
,.'
The importance of the ndministrativc rule-making power and
the need for its exercise under modern conditions has led
to
increasing emphasis upon the safeguards necessnry to ensure against
abuses.
'
An
unfettered exercise of power is ccrtainly good for
no
one, and Government Departments are
no
exception
to
the rule
'.*
The
conclusion
of
the Donoughmore Committee on this point can
serve to illustrate the problem. 'We do not agree with those
critics who think that the practice
[i.~.,
of delegated legislation] is
wholly bad. We
see
in
it definite advantages, provided that the
statutory powers are exercised and the statutory functions per-
formed in the right way. But
risks
of
abuse are incidental
to
it,
and we believe that safeguards are required, if the country
is
to
continue
to
enjoy the advantages of the practice without sufXering
from its inherent dangers
'.s
The focus of inquiry has, therefore,
shifted from the question of the desirability of delegation-few
would dispute that today-to that of control.
If
we agree, as we
must, that delegations of authority
to
administrative agencies are
necessary
,
the problem then becomes largely one of Safeguards.
From the point of view
of
the citizen affected, the primary safe-
guard to ensure the proper exercise of powers
of
delegated legislation
lies
in the development of adequate proccdures to be followed by
the administrative process in the formulation
of
rules and regula-
tions. The development of
such
rule-making procedure has in the
I
Mr.
Chief
Juetice
Stone in
Columbia
Broadcasting
System
v.
United
Stoles,
916
U.S.
407
(1942).
2
Gwyer,
;
The
i)o\ve;
of
Public
Departmenla
Lo
Make
Rules
hnving
the
Force
of
Taw
,
(1027)
5
J.
of
Pub.Ad.
404,
400.
J
Report,
4.
449
450
THE
MODERN
LAW
REVIEW
VOL.
11
past been largely a matter
for
the administrative agency concerned.
This has probably been due to the fear that the lcgislntive prcscrip-
tion of procedural requirements would make it difficult to maintain
that flexibility in formulation, which is one of the chief virtues of
delegated legislation. The absence of express statutory require-
ments has not, however, militated against the development of
specific rule-making procedures on both sides
of
the Atlantic. The
procedures thus adopted have been basically similar in both
countries. Their purpose, broadly speaking, has been to ensure
some participation to those affected by delegated legislation in the
rule-making process. The basic problem, here, has been the
democratisation of the rule-making process,
'
without, at the same
time, imposing such burdensome requirements that rules will either
not be made
or
policy will be driven underground, as
it
were, and
remain inarticulate
or
secret
'.'
To this end, certain procedural
techniques have been developed; and the tendency in recent years
has been
in
the direction of giving them statutory articulation.
The 5rst of these techniques, consultations and conferences with
those interests to
be
affected by the administrative rules and regula-
tions, is almost an inevitable consequence of the growth of delegated
legislation.
'
As
economic and other groups in the community
became organised and vocal, and as legislation affecting them came
more and more into existence, administrators, in contact With those
upon whom their authority bore, turned to them for information
and their points
of
view
'.b
It
is natural both that those affected
should seek to make their wishes known, and that officials should
rely upon them for information on the problems
to
be solved.
'
The
complexity
of
these problems under modern conditions makes con-
sultation with those who are
"on
the inside" virtually a
necessity
Such consultation
of
interests has tended
to
become a regular
feature of the rule-making process. This has been especially true
where the interests affected are well organised and vocal and hence
able to be
in
constant contact with the administrative. The extent
to which such consultation is relied upon by Government Depart-
ments
in
this country was amply demonstrated in the evidence
before the Donoughmore Committee. Thus, the Secretary to the
Ministry
of
Health gave
'
an impressive list of the bodies consulted
by the Ministry of Health before making new statutory regulations
about the use of preservatives in food. Over sixty associations and
individuals were notified of the draft proposals
;
these included
various bodies representing food manufacturers, the London
Chamber of Commerce, the Royal Sanitary Institute, the Society
4
Report
of
the United Statee Attornoy-General's Committee on Adminietrativc
Procedure, (1941) 225.
s
Id.,
at
1,03.
Fuchs,
Procedure
in
.4drninistrative Rule-Making
I,
(1998)
52 HarvLRev.
969,
214.
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