Separation of Powers at the Crossroads
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the State level, there are fifty additional governments, all regulating
through their own courts and departments of labor some aspect of labormanagement relations, such as workers’ compensation, while at the same
time implementing Federal policies. It is an enormously complex affair, requiring considerable effort, expense, and expertise. The result is the establishment of an enormous bureaucracy.
As originally conceived, these independent regulatory commissions
were thought to be necessary as a means of introducing order into a highly
industrialized nation, providing uniform controls, eliminating monopolistic practices, and in general improving health, safety, and welfare. In a
very emphatic way, they represented a rejection of the laissez-faire approach to economic activity, prevalent in the nineteenth century, which
frowned on government interference in a free market economy and took
the position that all members of society, and the nation at large, would
enjoy greater prosperity and abundance if government refrained from
meddling too much in the economy and allowed the laws of supply and
demand to work naturally.
The wisdom of government regulation, and the extent to which the
natural forces of the market should be controlled, are questions of great
interest and debate. Our purpose here, however, is to evaluate the effect
the creation of these independent commissions has had on the separation
of powers system. The legislative powers of the Federal government, we
recall, are delegated powers. They were originally in the possession of
the States, which delegated them to Congress. An ancient maxim of the
separation of powers doctrine holds that ‘‘that which has been delegated
cannot be redelegated.’’ A separation of powers would not long exist if
Congress were free to transfer its delegated powers to another branch.
Likewise, the system would not function properly if Congress could delegate its powers back to the States, or to the people at large. Although
under some State constitutions the citizens may initiate legislation through
what is called the ‘‘initiative,’’ or repeal laws through ‘‘referendum,’’ such
practices circumventing the legislature are prohibited under the United
States Constitution. They constitute an unconstitutional delegation of legislative power.
How, then, has it been possible for Congress to delegate its legislative