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The Courts, Congress, and Executive Policy Making: Notes on Three Doctrines, 40 Law and Contemporary Problems 46 (1976)


My starting point is an increasingly common description of reality: that there has been a continuing flow of policy-making power from Congress to the executive; that as a result the executive makes major policy which has not been affirmatively endorsed by Congress; and that this is a significant problem in our constitutional system. Against the background of frequent arguments that Congress' role in policy-making should be strengthened and protected to assure an appropriate allocation of power in our system, I consider here whether the courts should play some role in furthering that objective.

The question is an extremely complex one. A persuasive answer would require a full analysis of various legal doctrines; questions of political and constitutional theory; the actual behavior of political and administrative bodies in making policy; the practicality of' greater congressional policy-making in various areas; and all of the alternative means of controlling executive policy-making. This conference paper, prepared over a few weeks by a practicing attorney relatively new to the specific subject at hand, is obviously not such an effort. My purpose at this point is simply to be suggestive about several legal doctrines—to set forth a position which, I believe, at least deserves further consideration, even though I recognize that ultimately it may not prove fruitful.

In only a very preliminary and tentative way, then, I argue that the courts can and should play some role in stemming the flow of policy-making power away from Congress. The judicial weapons are limited, however, and the appropriate judicial role at most a modest one; and the effort is useless unless Congress is willing and able, with a little encouragement, to reclaim a more decisive policy-making role. I discuss three methods that the courts have used or might use to curb executive policy-making and recall Congress to a greater policy-making role: applying the delegation doctrine narrowly construing statutes which do not clearly and explicitly authorize executive policy-making and construing statutes so as to preempt any inherent presidential power to make policy. In a brief final section, I add some more general observations on the subject. Although the focus of this symposium is the executive branch, my thoughts are at least as applicable to policy-making by the independent agencies, and therefore I refer to them as well in my discussion.

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