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Democratic Control Or 'High-Sounding Hocus-Pocus'? - A Public Choice Analysis of the Non-Delegation Doctrine

出版	SSRN, 2012
URL	http://books.google.com.hk/books?id=wrDfzwEACAAJ&hl=&source=gbs_api

註釋This paper considers the implications of public choice theory for the traditional conception of the non-delegation doctrine. This doctrine purports to preserve the legitimacy of delegated decision-making on the basis that the legislative branch retains a dominant and directive influence on the exercise of the delegated power. Public choice theory would contend, however, that there may be reasons for legislators to delegate a significant amount of discretinary power to administrative or regulatory decision-makers: avoiding responsibility for unpopular decision; surreptitiously satisfying vested interests; and so on. McNollgast argued, for example, that legislators can satisfying the demands of their organised supporters via the administrative process whilst avoiding the possible political cost of openly doing so. This highlights a potential tension between the traditional non-delegation model's assumption that legislators will seek to retain control and influence and, on the other hand, the public choice literature's insight that there may be incentives for legislators to deny themselves a conspicuous level of policy control. This suggests that the non-delegation doctrine's insistence on principles and policies or on some goals, standards of factors may be an ineffective means to prevent such abuses of the legislature's entitlement to delegate power. It also proceeds to consider alternatives to the current approach to the non-delegation doctrine, including a stricter application of it by the courts or Mashaw's presidential theory of administative discretion.