Constitutional Administration

By Wurman, Ilan | Stanford Law Review, February 2017 | Go to article overview

Constitutional Administration


Wurman, Ilan, Stanford Law Review


6. Proposed text of a Rulemaking Enabling Act

A Rulemaking Enabling Act that requires all rulemakings legislative in character to be considered by Congress--which could then take action or approve by inaction--would be constitutionally permissible were the Court to accept the reality of delegation. The following is a proposed draft of a Rulemaking Enabling Act, which can serve as the basis of legislative discussions:

   Any agency of the United States, as defined by Chapter 5 of the
   Administrative Procedure Act, shall transmit to the Congress not
   later than May 1 of the year in which a rule prescribed under
   section 553 of that chapter is to become effective a copy of the
   proposed rule. Such rule shall take effect no earlier than December
   1 of the year in which such rule is so transmitted unless otherwise
   provided by law.

   All independent commissions, which engage in the making of
   prospective rules generally applicable in nature, shall,
   notwithstanding anything to the contrary in governing statutes
   existing at the time of this statute's enactment, transmit to the
   Congress not later than May 1 of the year in which such a rule is
   to become effective a copy of the proposed rule. Such rule shall
   take effect no earlier than December 1 of the year in which such
   rule is so transmitted unless otherwise provided by law.

   If the Congress enacts such rule, or an amended version of it, the
   rule, or the amended version, shall be presented to the President
   of the United States; and before the same shall take effect, shall
   be approved by him, or being disapproved by him, shall be repassed
   by two thirds of the Senate and House of Representatives. If any
   rule shall not be returned by the President within ten days after
   it shall have been presented to him, the same shall be a law, in
   like manner as if he had signed it.

   If Congress takes no action in the allotted time, such inaction
   shall be construed as assent to the rule, but such rule must still
   be presented to the President and, before the same shall take
   effect, shall be approved by him, or being disapproved by him,
   shall be repassed by two thirds of the Senate and House of
   Representatives. If any such rule shall not be returned by the
   President within ten days after it shall have been presented to
   him, the same shall be a law.

   If either house of Congress takes action on the rule but no final
   bill is enacted by the allotted time, Congress shall be construed
   to have taken no action and the rule shall become law. But if the
   full Congress enacts a resolution of disapproval, the rule shall
   not become law. (173)

This law is not only simple; it is politically practicable. It would leave much of the administrative state undisturbed, but both Congress and the President would have an incentive to enact it: each would get a new power over the administrative state.

B. Presidential Administration and a Modified Unitary Executive

Formalists find themselves in a quandary when it comes to executive power. Many believe that a unitary executive is constitutionally required. According to this view, the President should have full control over not only the rulemakings and other activities of executive branch agencies but also the activities of independent commissions over which he currently has far less control. (174) On the other hand, those who hold this view lament the tremendous growth of the President's power that attended the rise of the administrative state. (175) The combination of an unconstitutional state of affairs--a toothless nondelegation doctrine--with a constitutional unitary executive should be frightening to formalists. If Congress is to delegate great authority, is it not better to divide up that power rather than have it accumulate in one unitary executive?

Functionalists also find themselves somewhat ambivalent about the modern chief executive. …

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