Negative Lawmaking Delegations: Constitutional Structure and Delegations to the Executive of Discretionary Authority to Amend, Waive, and Cancel Statutory Text

Authors

R. Craig Kitchen

Abstract

In Clinton v. City of New York, the Supreme Court suggested congressional delegation of the power to amend, waive, or cancel statutory text violates bicameralism and presentment. This Article reexamines the Court's holding and shows that it has had little impact on judicial review of lawmaking delegations. The article then proposes an analytical framework for lawmaking decisions by categorizing them as either positive or negative delegations. It discusses the different types of negative delegations that congress can make, thereby granting the executive partial or total power to negate statutory text. The article then discusses how such negative delegations are constitutionally suspect and, moreover, allow the Executive to undo the legislative compromises necessary to specify the details of statutory text. Thus, this Article argues, most negative lawmaking delegations are unconstitutional because they undermine political minorities and political compromise. Therefore, Article I, Section 7 should be reinvigorated as a constraint on negative lawmaking delegations.

Recommended Citation

R. Craig Kitchen, Negative Lawmaking Delegations: Constitutional Structure and Delegations to the Executive of Discretionary Authority to Amend, Waive, and Cancel Statutory Text, 40 Hastings Const. L.Q. 525 (2013).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol40/iss3/2