01/04/2017: Loyola on Separation of Powers

After Wickard v. Filburn (1942) removed all effective limits on the Federal commerce power, Congress began regulating all aspects of economic activity.

Combined with the then-modish infatuation with science, this opened the floodgates to delegations of legislative authority to Executive Branch agencies. Given the difficulty of drawing clear boundaries between legislative, executive and judicial powers, the Court abandoned formal categories in favor of a functional approach that allowed any delegation for which Congress supplied “intelligible” guiding principles, and prohibited only “usurpation” of the powers of other branches. Yet as David Schoenbrod observes, usurpation is not the only problem: “Legislators enhance their power by delegating: they retain the ability to influence events by pressuring agencies, while they shed responsibility for the exercise of power by avoiding public votes on hard choices.”

– Mario Loyola
The Federal-State Crack-up,”
The National Interest, (Jan/Feb 2013)

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