| This DT is a bit long, so bear with me. There is a question here somewhere. The courts have seriously considered the extent to which Congress can delegate its powers to third parties only in this century. In 1904, the United States Supreme Court first declared that the test of whether a delegation is proper is if Congress establishes ascertainable "standards" that outline the limits of the agency's discretion. |
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| Supreme Court decisions in the 1920s held that Congress could delegate only gap-filling powers to administrative agencies. In other words, Congress would pass a law expressed in general terms, and the agency would fill in the "gaps" by creating regulations to implement the law. This approach was prompted by the perception that Congress's ability to oversee directly the implementation of particular laws is limited and that specialized agencies are better able to regulate areas involving technical questions. The Court extended great deference to such delegations by Congress. |
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This attitude changed with the 1929 stock market crash and the onset of the Great Depression. The rapid disintegration of the national economy caused the unemployment rate to rise to 25 percent, and bank failures, bankruptcies, and foreclosures became commonplace. Public pressure for government action resulted in the creation of a number of programs designed to jump-start the economy and reverse its deflationary spiral. Foremost among efforts to pump up prices and wages was the National Industrial Recovery Act (NIRA), which gave the president unprecedented powers to manage the economy through the formulation of "fair-competition" codes. These codes would be drawn up by trade or industrial groups and become law on the approval of the president so long as they did not result in the creation of unlawful monopoly power. The question is: Are the legislative and administrative branches of the federal government using federal agencies as a means to expand their powers at a loss to the judicial branch?
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