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Delegation of Governmental Power to Private PartiesA Comparative Perspective$
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Catherine M. Donnelly

Print publication date: 2007

Print ISBN-13: 9780199298242

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199298242.001.0001

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Constitutional Controls on Delegation

Constitutional Controls on Delegation

(p.118) 4 Constitutional Controls on Delegation
Delegation of Governmental Power to Private Parties

Catherine M Donnelly

Oxford University Press

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.

Keywords:   non-delegation doctrine, US federal constitutional law, US state constitutional law, Meroni, unwritten constitution, institutional balance, separation of powers

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