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Sunday, January 08, 2023 10:48:42 PM
On the current practice of letting the federal agencies have a legislative branch (rule making authority), executive branch (enforcement of the rules), and Judicial Branch (tribunals within the agency to interpret the rules or administrative law judges), James Madison wanted the first (or second) Congress to include a Nondelegation Clause to the US Constitution, it passed the House but died in a closed door Senate Committee meeting.
Here's what James Madison said about the delegation of power from one branch to another:
" As James Madison wrote in Feder-
alist No. 47,
The accumulation of all powers, legislative, executive, and judiciary, in
the same hands, whether of one, a few, or many, and whether hereditary,
self-appointed, or elective, may justly be pronounced the very definition
of tyranny. Were the federal Constitution, therefore, really chargeable
with the accumulation of powers, or with a mixture of powers, having a
dangerous tendency to such an accumulation, no further arguments would
be necessary to inspire a universal reprobation of the system.187
Or in the words of Montesquieu, an influential theorist for the Founding gener-
ation,188 “When the legislative and executive powers are united in the same per-
son, or in the same body of magistrates, there can be no liberty.”189
In light of statements such as these, could it possibly have been understood
by anyone at the Founding that the Constitution imposed no limits on what
Congress could delegate to the Executive? This separation-of-powers sentiment,
widely shared in the Founding era, also included at least an implicature when-
ever expressed. Listeners in the Founding era would likely have understood such
statements to imply that Congress could not delegate its legislative power."
I. Wurman, Nondelegation at the Founding, 130 Yale L. J. 1526 (2021)
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