England Vs USA - Delegated Legislation

Constitutionality of delegated legislation
It basically means the limits that are permissible within a Constitution of a

country through which Legislature with all his right can delegate its power of
rulemaking to other agencies of administration. The aim of extending the
power of the government is to handle socio-economic problem.
Position in USA: Delegated legislation is not allowed theoretically in the

constitution of the USA because of the two reasons. These are, “Separation of
Power” and “Delegatus non potest delegare”. There is no reference of text has
been given in the Constitution of the USA which shows that it delegates its
power from Legislature to the Executive. Congress was itself a delegatee then
how can it delegate its powers. The political theory that was propagated by
philosophers like John Locke and Montesquieu were imbued on the framers of
the American Constitution. John Locke has said that a legislative cannot
delegate his powers of lawmaking to any person or cannot place it anywhere.
He further stated that there should be separate Legislature and Executive
because if the power of law making and execution of that laws go in one hand
it can be misused and these people use that power to exempt them from that
law and use it for their private advantage. So the doctrine of ‘delegatus non
potest delegare’ has been given by John Locke it means the same as what we
have explained above.
Another philosopher, Montesquieu has given the concept of ‘Separation of

Powers’. According to Montesquieu, one person cannot exercise all the three
powers of the government i.e., the Judiciary, the Legislature, and the
Executive. The Legislature should make laws and should not enforce or
administer it. Similarly Executive should not interfere in the work of Judiciary
and Legislature and Judiciary should be free from Executive and Legislature.
All should do their work separately. In America, the power to make legislation
has been given to the Congress, executive powers given to the President of the
USA, and the judiciary power of the United States is vested in the hands of
Supreme Court and also it might be given to lower court from time to time on
the ordain of the Congress.
Due to the adoption of separation of power by the United States, the

legislative power can be vested only in the hand of Congress and no organs of
the government. Further, it has argued that the power to the Congress itself
has been delegated by the American Constitution so it cannot further delegate
its power. In case of Field v. Clarke,[7] it has been observed by the Supreme
Court of America that the power entrusted to one department should only be
exercised by that department without interfering in the power or area of
another person. But in some other cases of Supreme Court of America, it was
observed that in non-legislative power such as rule-making power or quasi-
legislative powers can be delegated by Legislature to the Executive.
In Wagman v. Southard,[8] Chief Justice Marshall observed that the line has
been not drawn between those subjects which were important and, therefore,
regulated by the Legislature itself and those subjects of lower interest which
were given to the Executive for filling the details in the structure of that
legislation.
So to conclude about the delegated legislation in America it can be said that it

has not been accepted in principle but in practice, the Legislature has
entrusted the power of law-making to the Executive.
Position in England:
The doctrine of parliamentary sovereignty is the core element of the UK

Constitution. In England the Parliament is supreme and there is no limitation
by the Constitution on the Parliament. Also, Parliament in England has wide
powers of delegating its legislative power to the Executive or other
subordinate bodies. Committee on Ministers’ Powers also refers to as
Donoughmore Committee released a report in which a famous lawyer of
England, Sir Cecil Carr has quoted about three parts of legislation. These are
as follows:
 The first and the very smallest part is made by the Crown under her
prerogative powers.
 The second and the weightiest part is made by the King in the
Parliament and it consists of Acts of Parliament.
 The third and the bulkiest part is made by such body whom the King
entrust the power of legislation in the Parliament.
Sir Cecil Carr has also observed that the truth is that if the parliament is not
willing to delegate the law-making power, the Parliament is unable to provide
quality and kind of legislation the modern public wants.
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.

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Constitutionality of delegated legislation

It basically means the limits that are permissible within a Constitution of a

Position in USA: Delegated legislation is not allowed theoretically in the

Another philosopher, Montesquieu has given the concept of ‘Separation of

Due to the adoption of separation of power by the United States, the

So to conclude about the delegated legislation in America it can be said that it

The doctrine of parliamentary sovereignty is the core element of the UK

In England no question of constitutionality in respect of delegated legislation arises, because here

Development of delegated legislation in U.S.A.

The syllogism of Professor Cushman:

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

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

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