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Delegation

Delegation occurs in politics whenever one actor or body grants authority to another to act on behalf of or to carry out a function for the first in a political process. In such general terms, delegation is ubiquitous and a defining feature of politics beyond direct individual actions. Voters delegate to elected officials in representative government; governments delegate to ambassadors in foreign affairs; legislatures delegate to committees the authority to study policy issues and report bills and to bureaucracies the authority to make policy.

Because of the breadth of the topic, this entry focuses specifically on delegation from legislatures to bureaucracies in administrative and bureaucratic governments. Delegation has become inherent in this mode of governance as the reach of public policy has expanded beyond what elected legislatures can possibly handle. Such delegation presents particularly interesting institutional and political problems in the United States due to separation of powers, and thus, this entry focuses even more specifically on the rationale for and determinants of delegation in this case. Because of space limitations, this entry does not address whether agency use of delegated authority is responsive to the policy goals of external political actors (Congress, the president, courts, interest groups) or the channels by which this responsiveness is effected.

Scope of Delegation to Bureaucracies in the United States

Delegation to bureaucracy presents important questions of political and democratic legitimacy because it often imparts to the bureaucracy some power to shape the law. In practice, delegation involves the bureaucracy in making law, beyond the nonlegislative functions of executing laws passed by Congress. Yet Article 1 of the Constitution explicitly allocates the power to make law only to Congress. Moreover, delegation of lawmaking power implies that bureaucracies blend the formal powers (legislative, executive, and judicial) that the Constitution separates. The Supreme Court held such delegation, in its most expansive form, unconstitutional in its 1935 decision in Schechter Poultry Corporation v. United States, which invalidated the administrative nerve center of Franklin Delano Roosevelt's New Deal. Since then, the typical formulation to legitimize Congress's delegation of its Article I power to make law is that Congress articulates at least a “general standard” to guide agency policy making, and agencies merely “fill in the details.” However, no statute has been invalidated by the Supreme Court on delegation grounds since 1935; even extremely broad guidelines stipulating only that agencies regulate “in the public interest” have been upheld. Thus, it is debatable whether Congress faces any meaningful legal restrictions on its delegation to agencies.

James M. Landis, one of the foremost legal scholars of regulation and architect of the Securities and Exchange Commission, disputed such critiques of delegation on the grounds that, first, each constitutional branch of government possessed ample checks over administrative agencies, and second, delegation to administrative boards was necessary to reconcile democratic government with the formidably complex policy problems created by economic developments. This defense has retained intellectual currency since Landis first offered it.

Causes and Effects of Delegation

The history of delegation to bureaucracy in the United States is a history of Congress working hard to give away a measure of formal power allocated to it in the Constitution. Since Congress often keeps close watch on its constitutional prerogatives, this is a choice that is interesting to try to explain. Scholars have offered a wide variety of theories to do so. Broadly speaking, the contemporary political science literature avers that delegation of policy-making authority to bureaucracies allows a legislature to achieve policy ends that it could not achieve through legislation itself.

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