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A distinctive feature of the modern regulatory state is the extensive delegation of powers to politically independent institutions (agencies, boards, commissions, tribunals), and this delegation of legislative powers to unelected policy- makers has always been somewhat problematic from the viewpoint of democratic theory. The American regulatory state has grappled with this issue for more than a century, and regulatory legitimacy is becoming an increasingly important political problem also in Europe, both at national and Community levels. In the United States the ‘non–delegation doctrine’ was the first attempt to resolve the normative problems raised by the emergence of a modern system of administrative regulation, and found widespread acceptance, but the delegation problem is considerably more complicated in the European Community/European Union (EC/EU), where various initiatives have been enacted. In both the United States and in Europe, constitutional doctrines against delegation have unravelled because the practical case for allowing regulatory discretion is overwhelming, so it is impossible to study the politics of regulation without first understanding why political principals choose to delegate rule–making powers. This is the subject of the first section of this chapter, which then goes on to analyse the relation between delegation and agency independence using the concept of political property rights, and to discuss the future of European regulation, and the politics of institutional change.

With the creation of the United Nations (UN) in 1945, the UN Security Council was envisaged to play a central role in the maintenance or restoration of international peace and security. To this end, UN Member States agreed in Article 24 of the Charter to confer on the Council primary responsibility for the maintenance of international peace and security. The specific powers which the Charter gives the Council to achieve this objective are contained in Chapter VII. However, the Security Council has had to delegate its Chapter VII powers to entities that have an enforcement capacity which the Council at present lacks: in particular, it lacks a military force which it can use directly to carry out military enforcement action. This chapter constructs the legal framework governing the process of delegation of Chapter VII powers by the UN Security Council.

This chapter examines the concept of delegation in EU administrative law. It begins with the legal issues relating to the constitutional framework of delegation to EU institutions under the EC Treaty before discussing the new constitutional framework established by the Lisbon Treaty of delegated and implementing acts under Articles 290 and 291 of the Treaty on the Functioning of the European Union. It examines the increasingly important delegation of powers to European agencies in the light of the continuing relevance of the Meroni doctrine. It then turns to an assessment of the entrusting of EU powers to the Member States and gives consideration to the constitutionally challenging involvement of private bodies in the implementation of EU policies. It provides an account of the specific issues concerning delegations in respect of financial matters. It concludes with a consideration of the legal issues relating to intra-institutional delegation, in particular within the Commission.

The United Nations (UN) Security Council consistently delegates its Chapter VII powers to UN Member States. Interestingly, although the first few instances of Korea and Southern Rhodesia were seen at the time as being exceptional sui generis cases, they only now, however, appear as part of a continuum in this practice. The Council has delegated its Chapter VII powers to Member States for the attainment of the following five objectives: to counter a use of force by a State or entities within a State; to carry out a naval interdiction; to achieve humanitarian objectives; to enforce a Council declared no-fly zone; and to ensure implementation by parties of an agreement which the Council has deemed is necessary for the maintenance or restoration of peace. This chapter examines whether the UN Security Council has complied with the requirements that flow from the legal framework governing delegation of its Chapter VII powers.

The United Nations (UN) Security Council may possess the competence to delegate its Chapter VII powers to the other UN principal organs. In practice, however, the Council has mostly delegated such powers to the UN Secretary-General (SG). This chapter examines the legal issues which arise from delegation of Chapter VII powers by the UN Security Council to the SG. In exploring further such delegations of Chapter VII power, this chapter considers three main areas: the competence of the Security Council to delegate its Chapter VII powers to the SG; the construction of the legal framework governing the exercise of Chapter VII powers by the SG: and the practice of the Council when delegating its Chapter VII powers to the SG and the practice of the SG in exercising these powers.

The six principal organs of the United Nations (UN) possess the authority to establish and utilise subsidiary organs in the attainment of their Charter ohjectives. The establishment and termination of UN subsidiary organs is governed by a legal framework consisting of the relevant provisions of the UN Charter and those parts of the general law of international institutions that relate to this activity, while the lawfulness of the acts of subsidiary organs will depend on the subsidiary complying with the legal mandate conferred on it by the principal. The former deals with the competence of principal organs to establish and terminate subsidiary organs while the latter is concerned with the subsidiary remaining within the bounds of its delegated mandate. This chapter looks at those elements of the general legal framework that govern the processes of establishment and termination of UN subsidiary organs.

The remaining entity to which the United Nations (UN) Council has delegated its Chapter VII powers is regional arrangements or agencies. This chapter examines this particular delegation, first by looking at the competence of the Council to delegate Chapter VII powers to regional arrangements. There are two issues which arise in such cases. The first is the legality of a delegation to a regional arrangement from the perspective of the UN; the second is the legal implications of such a delegation from the perspective of the regional arrangement. The legality of the practice of the Council in delegating Chapter VII powers to regional arrangements, in particular to the North Atlantic Treaty Organization (NATO), is discussed, together with the legality of the exercise of these powers by the regional arrangement concerned. The policy considerations relating to delegation of Chapter VII powers to regional arrangements are also explored.

Under the scheme of the United Nations (UN) Charter, any military enforcement measures designed to maintain or restore international peace would depend on forces supplied by UN Member States. Article 43 of the Charter contained provision for UN Members to contribute forces to the UN Security Council by way of formal agreement. The Council has delegated to Member States the competence to carry out military enforcement action under their own command and control. There is no express provision in the Charter for such a process. This chapter clarifies the contours of the legal framework which governs this process by examining the competence of the UN Security Council to delegate Chapter VII powers to UN Member States, the limitations on this competence, and who has responsibility for the acts of a force carrying out military enforcement action.

The aim of any collective security system is to preserve, and ensure the observance of, certain community defined values. Under Chapter VII of the UN Charter, the Security Council is mandated to determine what these community values are — what constitutes a threat to, or breach of, international peace and what is the appropriate measure to maintain or restore peace. The danger with the delegation of Chapter VII powers by the Security Council is that the interests of States may not converge with the most effective way to achieve the community defined values at best and at worst may even conflict with the attainment of such an objective. This is where application of the legal framework governing the process of delegation of Chapter VII powers is of primary importance. The role of law here is to prescribe the limits which regulate the delegation and exercise of these powers to ensure that the community-defined goal is achieved.

The basic principle for the Bundesverfassungsgericht (German Federal Constitutional Court) has been that the international delegation of limited and revocable powers generally has been accepted as long as the organizations to which powers are delegated also provide adequate protection of individual rights. The principle that delegation is to be functional was another way to create safeguards concerning the extent to which powers were delegated. That principle has been applied consistently with regard to delegations to the European Community (EC), although the definition of powers that are limited and revocable has been given an ever-wider interpretation over time. When considering how the Constitutional Court has exercised constitutional control over delegations to international organizations, it also is important to note that, in relation to the EC and the European Union (EU), it has controlled a process of constitutionalization at the level of European integration. This chapter compares that development with how the Constitutional Court has conceptualized the national constitutional control of developments in the second and third pillars of the EU and European integration more generally. In that context, it also provides a short background outlining how the Constitutional Court has treated problems of European integration. It argues that the development of supranational integration sheds new light on some of the central aspects of theories of judicial control of political decision-making.

This book shows how and why US Congress is particularly ambivalent about delegating authority on issues that address the “national interest” but have profound local policy and electoral consequences. This institutional ambivalence is reflected in a cycle that has different permutations in each area but that generally follows a pattern of delegation of power, followed by expression of regret in various direct and indirect ways, followed often by more delegation. The book presents case studies that explore the institutional and political causes of delegation as well as the significant consequences of these actions. The central premise of the book is that we cannot fully understand the role of Congress in the American political system without recognizing how the cycle of ambivalence reflects and affects the power balance between the Congress and the president. The book also explores the causes and consequences of ambivalence from Congress' perspective by analyzing prominent areas that combine foreign and domestic policy and reflect trade-offs between national and local interests and political perspectives.

This chapter suggests the need to develop a theory of constitutional inconsistency to gain a better understanding of the nuances surrounding the cycle of congressional ambivalence. These inconsistencies would also help in studying what Congress is now and its limitations going forward under any version of interbranch party arrangements. If each branch of the government ties its own personal and political goals to the protection and enlargement of its institution's place in the federal constellation of powers, then each branch would develop “a will of its own.” Congress, however, has failed to maintain its institutional ambition even during times of divided government where the House and the Senate are held by one party and the White House by the other. If congressional activity is consistent during and after lawmaking, then a balance of power is easier to achieve.

This book provides a legal analysis of the institutional mechanisms and processes which the United Nations (UN) employs force to maintain or restore international peace. The focus is both on the law pertaining to the use of force by the UN and on the development of the emerging institutional processes which the UN uses to maintain international peace. The UN Charter constitutes a collective security system which gives the UN Security Council the primary role to maintain and restore peace and, under Chapter VII, broad powers to achieve these objectives. To deal with an increasing demand for military enforcement action, coupled with its limited military and financial resources, the Security Council delegates its Chapter VII powers to some states (for example the coalition against Iraq) and invokes the regional possibility (a delegation of power to regional arrangements).

Emphasizing public legislative history and rhetoric, it can be argued that Congress has suffered from an existential crisis revealed in cycles of ambivalence, where members first delegate power, then appear to regret the decision and attempt to nibble back power in various ways, and then finally, months or years later, opt to delegate even more. However, there are moments of institutional cohesion that show Congress can indeed summon or at least defend its own institutional expertise, resources, and power to rival the president's. In contrast to Georeg W. Bush's legislative style of centralization and disrespect for Congress as an institution, President Barack Obama's staff and cabinet connections to Congress at all levels so far have shown an executive strategy of deference. Nevertheless, there remains the larger question whether Congress will ever forge a high-enough profile to counter any president's omnipresence in American politics or instead be relegated permanently to secondary status regardless of the imperfections of executive-driven policy of any era.

This chapter provides a typology of the various types of conferrals by States of powers on international organizations: cases of agency relationships, delegations of powers, and transfers of powers. It explains that the classification of these different types of conferrals is based on a measurement of the degree to which States have given away their powers to international organizations. First is the blunt instrument of revocability, second is the control by States over the organization, and third is an exclusive or concurrent competence to exercise conferred powers.

This introductory chapter begins with a brief discussion of the main focus of the book, namely structural reforms in the product and labour markets, and the method adopted in the analysis of structural reforms. It then considers the relevant interactions among institutions and the question of whether these interactions can be exploited to obtain political support for reforms. Government exploitation of labour market reforms and the delegation of power to supranatural authorities are also discussed.

This chapter explains the basic notions that will be used in the book, how they have emerged and what they mean; ‘primary’ and ‘secondary’ law, ‘legislative’ and ‘non-legislative’ acts, ‘delegated’ and ‘implementing’ acts, ‘delegation of powers’, ‘essential elements’ and ‘implementation’. The tone is neutral, careful not to reduce the complexity or interfere with the qualified assessments of all different authors. Focus is set on the development over time and the institutional context in which that development has taken place. An important ambition is to identify the legal sources which have been central for the development and also the sources which are today fundamental for the new system of delegation of powers. In addition to that statistics are presented on EU regulatory activity, which are central for all chapters of the book. Finally, the aim of the book is formulated and some important delimitations explained.

This chapter shows that even in private litigation cases, the federal judiciary is not always comfortable getting involved. There is a voluntary component to Congress's delegation of power and related changes in the legislative process that makes this area of litigation more complex than war powers. Here one sees there is no ideological or institutional rhythm to delegation of power and legislative process cases. Indeed, the federal courts are inconsistent in their interest in legislative process cases (the last delegation of legislative power cases were decided during the New Deal) and when they do enter these debates, such as the debate over the “legislative veto,” they get roundly criticized for it. The most obvious conclusion from the chapter is that judges appear to want some kind of toehold in the area of legislative processes and delegation of power without taking the full plunge regularly.

This chapter examines the relationship between parliamentarism and the legislative branch. It explores the evolution of the legislative branch, leading to disillusionment with the rationalized law-making factory, a venture run by political parties beyond the reach of constitutional rules. The rise of democratically bred party rule is positioned between the forces favouring free debate versus effective decision-making in the legislature. The chapter analyses the institutional make-up and internal operations of the legislature, the role of the opposition in the legislative assembly, and explores the benefits of bicameralism for boosting the powers of the legislative branch. Finally, it looks at the law-making process and its outsourcing via delegating legislative powers to the executive.