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decision so as to produce action that is based upon a weighing of the chief factors in the situation.148 Normally the chief factors of which account should be taken are: the relevant 'facts' so far as ascertainable; the principles of science or of political economy which are applicable; the viewpoints of the several special interests involved; the administrative aspects of the problem as viewed by government officials; and the interests of the general public, which in industrial matters correspond in large degree to the interests of consumers.149 The function of the officer with power of decision is to take these factors as presented to him and apportion to each its proper value. The means by which the factors are presented to him are through the permanent staff of the bureau or division and through the advice of the representatives of the interests concerned. Then his decision must be expressed, by technically trained draftsmen in legal language which carries the proper meaning 150 and corresponds to the language in use in the statutes and antecedent ordinances on the subject. The interests of the general public will suffer unless in suitable cases representative citizens are selected to voice them in an advisory capacity.151 This scheme of course applies to industrial and social 152 co-legislation especially; but it is probable that, in the years to come, these important matters 158 will be more largely handled by the federal government than they are at present.

148 Discretion must be left to somebody; but its exercise becomes intolerable unless surrounded by safeguards that force men to abandon arbitrariness and to weigh the facts properly.

149 Cf. Cole, Guild Socialism Restated, chap. v, pp. 37 ff., 67. 180 See Appendix, below.

151 Perhaps there is no satisfactory solution of this problem except it be through representation of consumers' interests. But the great trouble here is that most people are primarily members of another group and only secondarily and half-consciously consumers (cf. the criticism Lowell offers of private bill legislation in Parliament: Government of England, vol. i, p. 387 ff.).

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159 The problem is different in the case of political' and especially 'emergency' discretion from what it is in what may be termed economic discretion (see Martin v. Mott, 12 Wheat 19, for an example of political discretion).

153 Political problems are more and more becoming economic problems.

There is no intention of depriving the President of political responsibility for the issuance of all ordinances which involve discretion and wisdom rather than science, including those that may use science as a basis but the contents of which science alone cannot furnish. It is merely intended to give the administration a permanent machinery and facility for using both science and experience to the extent to which this is possible. Already we have something of the sort provided in the Tariff Act of 1922, where flexible rates are provided, and made changeable by the President, with the proviso that he must first secure an investigation and report by the Tariff Commission. It should be made clear that in all cases save where science can speak with finality the opinion of the experts should not control legally, but only morally and politically, the decision of the Chief Magistrate or the cabinet officer under him. Furthermore, the ordinance making experts should not be independent boards but bureaus attached to the several departments of administration. They should in general bear the same relation to the President and the department heads that the bureau of the budget now bears to the President alone under the Budget and Accounting Act, 1921. To these scientific experts should be added other permanent employees versed in the special problems of the department, upon whose administrative experience the heads, as laymen of temporary tenure, could with a fair degree of certainty depend.

Further details will be treated in later chapters; but there are several points that require mention at this point. With government by commission and even with executive colegislation have been associated notice and a hearing. Mr. Taft in his book on the Presidency wrote: "The creation of many executive Commissions has given rise to qualms in the minds of some, lest we are departing from those forms of proceeding intended to protect individual right. It may well be pointed out that the trend in all such executive tribunals is toward due judicial hearings and procedure." It is thus in line with "the tendencies of the Anglo-Saxon to give a

hearing as fair and equitable as is consistent with the effective operation of the government purpose."

"154

In all cases there must be at some stage at least a minimum of judicial review to inquire into the jurisdiction of the official who presumes to act,155 and in most cases of particular discretionary action some sort of judicial or administrative hearing in connection with the substantive side of the decision. In the case of the issuance of uniform regulations, or ordinances, there are certain cases at least where an administrative hearing prior to issuance is neither required in present practice nor desirable in theory.156 In other cases the statutes grant such a hearing; 157 though it is a question how far this is constitutionally necessary.

154 Our Chief Magistrate and His Powers, p. 82; cf. sec. 1 of the English Rules Publication Act, 1893.

155 The question of jurisdiction is a 'judicial' and not a 'political' question. It is judicial par excellence.

156 Martin v. Mott, 12 Wheat. 19.

157 A hearing is required of the Interstate Commerce Commission (see 24 Stat. L., 384, as amended by 34 Stat. L., 589, 36 Stat. L., 551, and 40 Stat. L., 272). But its orders may be to particular roads, although they are uniform with respect to the patrons of each such road.

CHAPTER XI

POLITICAL SAFEGUARDS AND PRIVATE REMEDIES

We want five things particularly.

(1) The delegation of legislative power should be delegation to a trustworthy authority which commands the national confidence.

...

(2) The limits within which the delegated power is to be exercised ought to be definitely laid down. . .

(3) In the third place, if any particular interests are to be specially affected by delegated legislation, the legislating authority should consult them before making its laws. .

(4) The fourth point to be insisted upon in delegated legislation is publicity.

(5) The fifth and last point is that there should be machinery for amending or revoking delegated legislation as required. . . .

-CARR.1

The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.

-Mississippi v. Johnson."

The general rule with regard to discretionary duties and directory statutes is, that the officer who executes them is not liable for the way in which he executes them, nor may he be forced by the courts to execute them in any particular manner.

I

-GOODNOW."

The term political safeguards covers several methods of holding the ordinance making officials responsible to the people for the exercise of their discretionary powers. These methods may be tabulated as follows: In the first place, there is the general check which is known as political responsibility, in its two main forms of direct and indirect responsibility. The distinction between the two as here drawn is based upon whether there is a hierarchical system with a popularly elected chief or a collegiate Executive jointly responsible to the legislature for the exercise of its ordinance making powers.

1 Delegated Legislation, chap. iv.

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24 Wall. 475.

296.

Principles of the Administrative Law of the United States, p.

292

In the second place, especially in governments which embody the separation of powers in the form of having an elective Chief Executive who holds office by the calendar and not at the pleasure of the legislature, there is a special form of legislative control of all officers of the administration in the process of impeachment. A President might be impeached for misuse of ordinance making power. In the third place, there is the control which the legislative department exercises over the purse and over the functions of the administration. Thus Congress can make the executive officers of the government mere clerks if it sees fit to appropriate money for minutely specified purposes and not for use by the administration in the exercise of some degree of discretion. By a like token, since most of the ordinance making powers of the President are by virtue of Congressional delegations, Congress can limit or expand the discretionary power of the Executive at its pleasure according as it legislates in general or specific terms. In the fourth place, there is the safeguard of publicity, which may be insured by any of several special methods. In the fifth place, there is the safeguard which comes to the special interests concerned through the method of the advisory function. To several of these political checks somewhat more detailed attention may be directed.

Impeachment really belongs among these 'political safeguards' rather than among the 'private remedies,' for the reason that it is a general check instead of a specific remedy.

If, however, lump-sum appropriations are made, and if the administrator-in-chief may make, at his discreton, shifts of sums from one sub-head to another, then there is room for 'official orders' or even administrative ordinances' (material ordinances).

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Hence, if co-legislative powers are persistently abused, the power to issue them may be taken back by the authority that gave them (Congress).

This has been sufficiently discussed in the last preceding chapter. It is to be noted also that the technical regularization and systematization of the process of co-legislation (as advocated in that chapter) will of itself be a safeguard, in that it will allow the public to understand the process and to realize its significance in a way that it does not now. As for the advisory function in particular, it is especially applicable in connection with the issuance of important codes of industrial rules and regulations. Where there is only sporadic ordinance making so as not to justify permanent advisory

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