LEGISLATIVE DELEGATION THE EROSION OF NORMATIVE LIMITS IN MODERN CONSTITUTIONALISMPDF电子书下载

1 Introduction 1

1.1 Delegation: Doctrinal, Metaphorical, and Constitutional-Philosophical Implications 1

1.2 Delegation as Phenomenon, Slogan, and Constitutional Reaction 7

1.3 Problem and Method 10

2 The Genealogy of the Concept of Delegation: Constitutional Presuppositions 17

2.1 A Constitutional History of Legislation Concepts 18

2.2 God Himself as Law: Law Between Faith and Tradition 26

2.3 Legislation Between Will and Tradition 36

2.3.1 Like the Point in Geometry: Legislation and the Question of Sovereignty 36

2.3.2 Rocher de Bronze: A Historical Illustration 42

2.4 Reason Unbound: Two Faces of the Enlightenment 45

2.5 Reason, Within Limits: Legislation in Constitutionalism and the Delegation Concept 53

2.5.1 Representation 54

2.5.2 Separation of Powers: Balance and Function 58

2.5.3 Legislation as a Rule of Law: Separation and Delegation 64

3 The Constitutional History of Delegation: Rules and Changes 69

3.1 Delegation of Congressional Legislative Power in American Constitutional History 72

3.1.1 The Doctrine of Nondelegation and the US Constitution:A Conceptual Framework 72

3.1.1.1 Nondelegation as a Doctrine of American Constitutional Law: An Introductory Taxonomy 72

3.1.1.2 Delegation of the Legislative Power in American Constitutional Law: Relevant Conceptual Associations and Constitutional Constraints 80

Delegata Potestas Non Potest Delegari 80

The Vesting Clause of Art.I and the Supremacy of the Constitution Argument 83

Representation and Delegation: Accountability,Participation and Deliberative Rationality 86

Separation of Powers and Nondelegation:Checks and Balances 90

Separation of Powers and Nondelegation: The Rule of Law Version of Separation of Powers 94

3.1.2 Legislation and Delegated Lawmaking in American Constitutional History 100

3.1.2.1 The Executive, the Administration, and the Bounds of Legislative Specitycity 103

3.1.2.2 Administrative Discretion, Legislative Scope,and the Growth of Federal Regulation: “A Law that Takes Property from A.and Gives it to B” 115

3.1.2.3 What Exactly Is a Trust? 124

3.1.2.4 Assumptions About Legislation, the Nondelegation Doctrine in Court, and the New Deal Constitutional Compromise 138

The Legal Doctrine of Nondelegation: A Brief Conceptual Aside 138

The Nondelegation Doctrine in Court: 216 Bad Years （and Counting） 143

The Blurring of Bright Lines and ‘Delegation Running Riot’ 151

3.2 The Constitutional Problem of Delegation in Pre-WWII Parliamentary Jurisdictions 159

3.2.1 The General Problematics of Delegation in Parliamentary Systems 159

3.2.2 “The Paradox of Supremacy”: Phenomena and Rules,Causes and Effects 161

3.2.3 Sole and Despotic Dominions: The Common Law and Parliamentary Sovereignty 166

3.2.3.1 Hewart’s Interjection！ 166

3.2.3.2 Dicey’s Dilemma 173

3.2.4 France: Law as the Expression of General Will 179

3.2.5 Legislative Reservation in Germany-State and Society 184

3.2.5.1 Legislative Reservation in the Constitutional Monarchy: The Advance of Society 184

3.2.5.2 The Qualified Retraction of the State 189

3.3 Rules and Changes 193

4 Delegation and Contemporary Implications: The Erosion of Normative Limits 197

4.1 （Non）Delegation Redux: Constitutionalism, Reason,and Rationality 197

4.1.1 Nondelegation Redux: The Limits of Reason 197

4.1.2 Delegation Rephrased: A Degree of Rationality 205

4.2 （Non）Delegation After Schechter: The Prerogatives of Obscurantism 214

4.2.1 Schechter Obscurantism: Where is the Constitutional Limit? 218

4.2.2 Chevron Agnosticism: Where is the Legislative Meaning? 230

4.3 Continental Distinctions 251

4.3.1 The Constitutional Normalization of Delegations 251

4.3.2 France: The Inconsequential Upheaval 254

4.3.3 Content, Purpose, and Scope: Why Simple, When It Can Be So Complicated? 258

4.4 Conclusion: The Unity of What? 270

Bibliography 275

Index 287