Development of delegated legislation in UK and USA

In England no question of constitutionality in respect of delegated legislation arises, because here parliament is supreme.  Parliament can confer the legislative power to any whom it things fit. However, sovereignty of parliament does not mean that there are no principles to which the practice of delegation must conform. The committee on Ministers’ powers has suggested that the precise limit of law making power which parliament intends to confer on a minister should always be expressly in clear language by the statute which confers it- when discretion is conferred its limits should be defined with equal clearness. Laying down of limits in the enabling Acts within which executive action must work is of greater importance to England than to any other country, because in the absence of any constitutional limitation, it is on the basis of those parliamentary limits alone that the power of judicial review can be exercised.

Development of delegated legislation in U.S.A.

In the United States of America, the rule against delegation of legislative power is basically based on the doctrine of separation of powers and its necessary corollary ‘delegatus non potest delegare’.

The doctrine of separation of power is accepted under the constitution of the U.S.A. Article 1 of the said constitution expressly conferred the legislative power to the Congress. The judiciary has the power to interpret the constitution and declare any statute unconstitutional if it does not conform any provision of the constitution.

In the leading case of Field V. Clark (1892) 143 US 649, the American Supreme Court observed- “Congress can’t delegate legislative power to the president is a principle universally recognized a vital to the integrity and maintenance of the system of government ordained by the Constitution”.

The syllogism of Professor Cushman:

Major premise: Legislative powers cannot be constitutionally delegated by congress.

Minor premise: It is essential that certain powers be delegated administrative officers and regulatory commissions.

Conclusion: Therefore, the powers thus delegated are not legislative powers.

However, considering the new demands of the executive it is accepted that rigid application of the doctrine of separation of powers is neither desirable nor feasible. Courts in U.S.A have laid down that important subjects should be entirely dealt by the congress and non-essential matters can be delegated. The Courts have made a distinction
between what may be termed as ‘legislative powers’ and the power to ‘fill in details’. If the policy and standard of a matter is clearly drawn by the congress, the executive may fill in detail within those standards.

In the Hot oil case, by an Act the president was authorized by the congress to prohibit transpiration of oil in inter-state commerce in excess of the quota fixed by the concerned state. The policy of the Act was ‘to encourage national industrial recovery’ and ‘to foster fair competition’. The Supreme Court by majority held that ‘the Congress has declared no policy, no rule. So the delegation was unconstitutional and void. In later times, the Supreme Court had taken a very liberal view and in a number of cases has upheld delegation of legislative power.