US democracy was founded on a principle of separation of powers, known as the doctrine of separation. This doctrine states that the legislative branch of government, Congress, should be responsible for making the laws while the executive, the presidency, is responsible for overseeing the administration of those laws.
However, in recent times these lines have become blurred. During the 20th century, largely out of wartime necessity, the executive branch has gained a number of legislative powers. A similar delegation of powers was seen in the immediate aftermath of the 9/11 attacks when the legislature again deemed it necessary to transfer additional powers to the executive.
This transformation has shaped the way that modern politics work. For example, in the UK, the British Parliament at Westminster makes the laws of the land. However, in practice, it is the executive (the Prime Minister and her cabinet) that make laws under the oversight of Parliament.
In the USA, the difference is even more dramatic and legally complex. The Supreme Court has reaffirmed on multiple occasions that the right to pass laws lies solely with Congress. And yet, the US President (as a position rather than an individual) is effectively able to pass laws via executive order.
Defining Delegated Legislation
Coming up with a single standard definition of delegated legislation is tricky. However, the best catch-all definition we have for delegated legislation is legislation that is made outside of the legislature. Delegated legislation is usually passed in the form of bylaws, schemes, directions or other localized measures.
When any authority who has been granted legislative powers by the legislative branch passes legislation, it is delegated legislation.
What is the Purpose of Delegated Legislation?
As we mentioned earlier, major world events have previously prompted the United States to transfer greater powers into the executive branch. There are other reasons that we are witnessing a rise in the amount of delegated legislation that is passed.
One of the key motivators in transferring powers from the legislature to the executive post-9/11 was the perceived unwieldiness of Congress. An individual can make snap decisions without having to convene the chamber and call a vote.
There is a similar argument often made that delegated legislation enables Congress to focus on important bills. There isn’t time for Congress to analyze every bill that comes before them in the same detail. Priority must be given to the most important legislation. By delegating their authority, Congress can enable local governments to pass laws and regulations governing the local population while it focuses on nationwide legislation.
Modern societies are very complicated. Our economics and political systems consist of a variety of institutions all working together. Lawmakers do not always have an in-depth understanding of these systems, no one person can know everything. For example, technology is clearly hugely important to our modern lives, but most of our politicians don’t understand it.
Many people think that the best solution is for the industry to regulate itself. Congress could grant industry bodies representing Silicon Valley the authority to implement a legally binding charter that other tech companies would be obliged to follow. The argument is that faced with the threat of a Federal level regulator, even a powerful industry like the tech industry will prefer to regulate themselves.
Modern democracies need to be flexible in order to keep pace with our rapidly evolving society. In the US, Congress doesn’t sit throughout the year and individual members of Congress need to return to their states and constituencies. Congress can’t be ready to go all the time, but sometimes decisions need to be made quickly. Delegating power to the executive means that they are able to make decisions instead of or until Congress can agree on a position.
Similarly, a state may think it is in the interests of its citizens for decisions about local laws to be taken by local groups. If, for example, there is a dispute about how public space is being used by a group or individual, it generally makes more sense to consult local bylaws and have the town or city council make a decision, rather than taking time from their congressional representatives’ schedule.
While delegated law has become increasingly common in the United States, it remains something of a legal grey area. The doctrine of separation of powers is absolutely fundamental to the US democratic system. Powers are separated in order to maintain appropriate oversight and so that no one branch of government can come to dominate the others.
May modern legal scholars have expressed their concerns that the collective response to the 9/11 attacks has been for Western countries, led by the United States, enacting numerous emergency powers, which have become normalized. In the aftermath of the attacks, no one questioned the need for the President to be able to respond dynamically. However, the extra powers vested in the position of the presidency post-9/11 are still in place.
Equally, we still have numerous examples of delegated wartime legislation from the two world wars that are still in effect, and which has become a normal part of our society.
It is clearly very important that the powers to legislate are not handed out haphazardly. In general, it is only our elected representatives who should make decisions about the laws we live under. However, where their experience or knowledge falls short, it makes sense to consult with experts. In some cases, it even makes sense to delegate authority to these experts.
Even though the delegation of powers appears to be explicitly forbidden by the US constitution and the doctrine of separation, it is still a relatively common practice. Ultimately, delegated powers can make a democracy fairer, more responsive, and more useful. But, delegating powers away from Congress can prevent issues from being properly debated. As always, proper oversight is required in order for delegated legislation to be a net benefit to our democracy. In the current political climate, where the winner takes all mentality reigns supreme, cooperation is sorely needed.