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Basic Constitutional Concepts
thing, actually regulates nothing, and has simply delegated enormous
power to the bureaucracy. This is an overstatement, of course, but there
is some truth to the charge. Keeping an eye on the commissions and
holding them accountable is an enormous undertaking; and there is no
question that at least in some respects these commissions are functioning
as independent law-making bodies. With its limited time and limited resources, Congress does not even have the opportunity to debate many of
the policies adopted by the commissions, let alone scrutinize them.
In response to these criticisms, it is argued nevertheless that the economic and technological complexities of modern America are so great
that Americans have little choice but to accept these commissions as necessary and essential, lest there be chaos and disorder. No doubt there is
some truth to this as well, suggesting that a strict separation of powers,
as understood by the Framers, may not be altogether possible nowadays,
and that the system can best be maintained by continually questioning
the need for each commission, re-evaluating its authority and powers,
and vigilantly guarding against excessive delegation of power.
Finally, it must always be borne in mind that the doctrine of the separation of powers is an integral part of the rule of law. When commissioners, agency heads, and their subordinates issue administrative rules and
regulations that have the force of law, they are making laws and functioning as legislators. When they enforce these regulations, and, for example, take administrative action by denying disability benefits to a veteran whose injuries, in the judgment of the regulators, are not war-related,
they are exercising an executive function. And when they adjudicate
claims, as in the case of a trucking firm, challenging the Interstate Commerce Commission’s refusal to grant a license, they are exercising a judicial function. In a sense, then, an independent regulatory commission
is almost a government unto itself, performing all the functions of government in contravention of the separation of powers. Because it is impossible to fix the limits of administrative discretion and to spell out in
detail all of the circumstances in which the regulators may exercise their
individual judgment, there is the constant danger that rule of law may be
supplanted by rule of men. Indeed, the separation of powers doctrine is
based on the premise that rule of law cannot be attained if all of the functions of government are concentrated in the same hands.