Abstract:
As many observers have noted, the authority of administrative agencies in the United States has continued to grow, virtually unchecked, despite questions about where the powers of these agencies fit into the tripartite framework—legislative, executive and judicial branches—mandated by the US Constitution. Of particular concern is the fact that Congress seems to confer more and more legislative and policy-making authority on these agencies. Recent congressional action—particularly the Dodd-Frank Wall Street Reform and Consumer Protection Act—has demonstrated that Congress will continue this process until the courts step in. Yet the courts have been reluctant to interfere with decisions of Congress even though the constitutional framework contemplates that they will be the objective protector of the structure the Founders put in place. There are some indications that the current Supreme Court may be ready to address the relentless growth issue, and this paper outlines a way that the judiciary might be able to distinguish between policy-making or legislation that should be the province of Congress, and the subsidiary activities—in aid of legislation—that are appropriate for administrative agencies.
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