RUAHA UNIVERSITY COLLEGE

FACULTY OF LAW

COURSE-ADMINISTRATIVE LAW (I), RLW 200

2nd YEAR LL.B 2006/07

8.5
ASSIGNMENT No. 1
10
DATE DUE 30th November 2006

QUESTION

One of the modern states which is known to be the greatest adherent to the
Montesquieu’s doctrine of separation of powers is the U.S.A. Thus on delegation of
legislative powers to the executive, Locke developed the theory that legislature could not
transfer the power of making laws to any other hand for it being delegated power from
the people. They who had it could not pass it over to others. And so was the decision of
the U.S.A. Supreme Court in the case of Field v Clark vol. 143 U.S.R. 650 at 692. Thus;

“it is a considered to be an essential principle underlying the constitution that powers

entrusted to one department should be exercised exclusively by that department without
encroaching upon the powers of another”

However the multifarious modern government activities have made such stand no longer
the position.

Comment on the above statement supporting your arguments with relevant authorities.

GROUP MEMBERS

S/N NAME SIGNATURE

1 MALITY SCHOLASTICA JOSEPH
2 PAUL ALPHONCE
3 LUCAS FLORIDA
4 JAMES LYATUU
 1

5 CUTHBERT ALDO MZINDIKI

6 MWAMBAPA MNAYA SETH

CONTENTS

1.0. INTRODUCTION

1.0.1. Meaning of key concepts

(a) Montesquieu’ doctrine of separation of powers

(b) Delegation of legislative powers

1.0.2. Separation of powers in the U.S.A.

2.0. MAINBODY

2.1. Delegated legislation in the U.S.A.

2.1.1. In theory

2.1.2. In practice

3.0. CONCLUSION

4.0. BIBLIOGRAPHY
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1.0. INTRODUCTION

1.0.1 Meaning of key concepts

(a) Montesquieu’s doctrine of separation of powers

According to Montesquieu (1689-1755), the government is divided into three branches or

institutions corresponding to basic functions of government namely the legislature, the
executive and the judiciary. The legislature makes the laws, the judiciary settles disputes,
and imposes sanctions for breaking the law, the executive enforces and puts the law into
effect. His idea of limits of power was what he called ‘dissonant harmony’. He believed
that disagreement was a health feature of politics and that the need for different interests
to cooperate would prevent any power being used excessively. As he famously stated
‘power must be checked by power’. Montesquieu thought that if any two of the three
functions falls into the same hands the outcome is likely to be tyranny. According to the
doctrine of separation of powers, each branch has different functions but each uses its
power to police the limits of the others. Conversely, within the limits of its powers, each
branch should be independent of the others.

(b) Delegation of legislative powers

The parliament is one of the three pillars of government whose sole function is to make
laws. In some instances the parliament due to some basic reasons confers its law making
power to other organs. In doing so the parliament is said to be delegating its legislative
powers and the resulting legislation so made is called delegated legislation.

According to Salmond1, delegated legislation is defined as;

“that which proceeds from any authority other than the sovereign
power and is, therefore, depend for its continued existence and
validity on some superior or supreme authority”

According to Jain and Jain2,the term delegated legislation may be used in two senses: it
may mean i. exercise of law making power by administrative authority delegated to it by

1
Salmond: JURISPRUDENCE, 12th Edn., p. 116.
2
ADMINISTRATIVE LAW, 1986, p. 26
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the legislature, or ii. the actual exercise of law making power itself in the forms of rules
and regulations, etc.

1.0.2. Separation of powers in the U.S.A.

In the United States the separation of powers is a fundamental constitutional principle.

Articles I through III of the Constitution of the United States place each of the basic
powers of government in a separate branch. The legislative power is vested in Congress,
the executive power in the president, and the judicial power in the Supreme Court and
other federal courts.

2.0. MAINBODY

2.1. Delegated legislation in the U.S.A.

2.1.1. In theory

In the United States of America, delegation of legislative powers is theoretically not

acceptable by virtue of two major aspects; namely separation of powers and delegatus
non potest delegare. The former aspect is well stipulated and accepted under Articles I to
III of the Constitution of the U.S.A. Article I vests all legislative powers to the Congress.
It thus provides;

“All legislative Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives”

The aspect of delegatus non potest delegare, which means that a delegate can not further
delegate, is to the effect that, since the Congress derives its legislative powers from the
people which means that the Congress is a delegate of the people it can not further
delegate the same to any other agency or institution. In Pennsylvania case3 it was stated
that; a power conferred upon an agent because of his fitness and the confidence reposed
in him cannot be delegated by him to another is a general and admitted rule. Legislatures
stand in this relation to the people whom they represent. Hence, it is a cardinal principle
of representative Government, that the legislature cannot delegate the power to make
laws to any other body or authority.

In observing and following a strict interpretation approach towards this Constitutional

stipulation as regards non-acceptance of delegation of legislative powers, the US
Supreme Court was formally strict in treating delegation of legislative powers as invalid.
This can be observed in some of the cases as stipulated hereunder;

3
(1873) 71 Locke’s Appeal 491 (497)
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In the case of Field v Clark4 the President was vested with some legislative powers and as
a result the American Supreme Court observed:

“That the Congress cannot delegate legislative power to the President is a principle
universally recognized as vital to the integrity and maintenance of the system of
Government ordained by the Constitution”

Furthermore in the case of Panama Refining Co. v. Ryan5, popularly known as the Hot
Oil case, under section 9(c) of the National Industrial Recovery Act (NIRA), 1933, the
President was authorized by the Congress to prohibit transportation of oil in inter-State
commence in excess of the quota fixed by the State concerned. The policy of the Act was
‘to encourage national industrial recovery’ and ‘to foster fair competition’. The Supreme
Court by majority held that the delegation was invalid. According to the Court the
Congress had not declared any legislative policy or standard.

Moreover in the case of Schechter Poultry Corporation v. U.S. 6 (Sick Chicken case), the
Supreme Court unanimously struck down section 3 of the National Industrial Recovery
Act (NIRA), 1933 which authorized the President to approve codes of fair competition
and violation thereof was made punishable. The Court held that the discretion of the
President was ‘virtually unfettered’.

The above was a theoretical position of delegation of legislative powers before the
Constitution of the United States of America and how the same was being strictly
construed by the Supreme Court. Nevertheless this position takes a different face in the
practical sense as regards the same.

2.1.2. In practice

Theoretically it was not possible for the Congress to delegate its legislative power to the
executive or any other agency. Strict construction of the same was earlier followed but
later came to be proved impracticable. This was due to the rapid increase of
Governmental functions which made it impossible for the Congress to enact all the
statutes with all particulars. This reality was also observed by the Supreme Court and as a
result it tried to create ‘a balance between the two conflicting forces: doctrine of
separation of powers barring delegation and the inevitability of delegation due to the
exigencies of the modern Government.

The Supreme Court can be observed to have responded positively towards this
inevitability and shifted from the strict approach to the liberal approach and in doing so
upheld delegation of legislative powers. This can be observed in the following cases:

In the case of National Broadcasting Co. v. U.S.7, vast powers were conferred upon the
Federal Communication Committee (FCC) to license broadcasting stations under the
4
(1892) 143 US 649.
5
(1934) 293 US 388.
6
(1935) 295 US 495: 79 L Ed 1570
7
(1943) 319 US 190
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Communications Act, 1934. The criterion was ‘public interest, convenience or necessity’.
Though it was vague and ambiguous, the Supreme Court held it to be a valid standard.

Furthermore in the case of Yakus v. U.S.8, under the Emergence Price Control Act, 1942,
the Price Administrator was given the power to fix such maximum price which in his
judgment will be generally fair and equitable and will effectuate the purposes of the Act.
The Administrator was required, so far as practicable, to give due consideration to the
prices between October 1 and October 15, 1941, but was allowed to consider a later date
if necessary data were not available, and yet the Supreme Court sustained the delegation,
holding that the standards were adequate.

Moreover in the case of Litcher v. U.S.9 the Reorganization Act, 1942, empowered
Administrative officers to determine whether prices were excessive and to recover profits
which they determined to be excessive. The Supreme Court held the delegation valid
observing that the statutory term ‘excessive profits’ was a sufficient expression of
legislative policy and standards to render it constitutional.

2.0. CONCLUSION

It is self explanatory from the above discussion that the inevitability of delegation of
legislative powers has become the reality in the U.S.A. The Supreme Court being one
among the important organs to realize the same, it can be observed to have adopted the
liberal approach abandoning the strict theoretical approach, the bottom line of this shift
being the increase of government functions which gave rise to the need for more statutes
of which the Congress could not solely manage to enact.

8
(1944) 321 US 414.
9
(1947) 334 US 742
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3.0. BIBLIOGRAPHY

ENCARTA ENCYCLOPEDIA STANDARD, 2004

Justice C.K. Thakker (Takwani), LECTURES ON ADMINISTRATIVE LAW, Eastern

Book Company Lucknow

John Alder, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 5 th Edn, Palgrave

Macmillan Law Masters

WIKIPEDIA, the free encyclopedia