The line has not been exactly drawn which separates The most accurate distinction is also the most vague: legis- The scope and procedures of H. R. 3658 argues against such a conclusion. The bill does not provide for review of all administrative action: it embraces rule-making alone, and even then just those rules that carry criminal penalties. More importantly, H. R. 3658 does not establish procedures for supervision of or participation in the administrative process. It imposes no requirements as to content of the rules in question and has no provision for Congress to amend or modify, or to suggest amendments or modifications to, the rules it considers. It permits Congress only to veto rules of which it disapproves, and requires Congress to scrutinize no rules at all if it so wishes. H.R. 3658 requires only that rules be laid before Congress for thirty days; the only rules to be thoroughly scrutinized are those referred to committee, which become effective in sixty days if not vetoed. It is difficult to see how H.R. 3658's "negative affirmance" procedure is any greater interference with the administrative process than are the activitiesof the GAO, the Comptroller General, or oversight or appropriations committees. Another ground for support for the bill is the fact that Congress has at least a special interest in legislative activity that creates crimes or offenses and at most exclusive control over that activity. Courts have repeat edly held that Congress cannot delegate to the executive the authority to declare crimes. United States v. Grimaud, 220 U.S. 506 (1910), compare with Light v. United States, 220 U.S. 523; United States v. Eaton, 144 U.S. 677, 688 (1891); United States v. Louisville & N. R. Co., 176 F. 942 (1910); People v. Grant, 275 N.Y.S 74 (1934), aff'd per curiam 267 N. Y. 508, 196 N.E. 553 (1935). Criminal sanctions imposed by administrative regulations have been held to derive their force and effect not from the regulations, but from the authority of the enabling statute itself, United States v. Grimaud, supra, and where an enabling statute does not provide for criminal sanctions, regulations imposing criminal penalties have been nullified. United States v. Louisville & N. R. Co., supra. It has also been held that even if an enabling statute provides for criminal sanctions, the executive cannot declare which facts shall constitute an offense. Id., 944. While subsequent decisions are thought to have over ruled sub silentio the limitations the decisions Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schechter Poultry v. United States, 295 U.S. 495 (1935) imposed on delegations in general, Professor Jaffe wrote in 1947 that the authority of Grimaud appeared sound. Jaffe, supra. 17 The implication of these cases is that administrative rule-making which involves criminal penalties is an area of concern to Congress and possibly an area in which only Congress can constitutionally act. In either event, H.R. 3658 is a valid means of protecting this interest. If Congress alone can act in this domain, there is no separation of powers problem at all, since the proposed administrative rules would have no effect on their own. The New Wave of Government Reprinted from Business and Society Review, Fall 1975 Murray L. Weidenbaum There is a striking but little-noticed parallel between the standard liberal concern with governmental infringement on the civil liberties of individuals and the rising conservative concern with governmental infringement on the freedom of individuals acting as business executives. The first target is often termed "Big Brother." The second could be called "Big Mother." Many liberals are outraged by the arbitrary "no-knock" powers of federal investigative agencies, yet they readily ignore the unchallenged no-knock power used by other federal agencies in their regulation of private business. Federal inspectors are an increasingly important physical presence in private industry. The Supreme Court has ruled that air pollution inspectors do not need search warrants to enter the property of suspected polluters as long as they do not enter areas closed to the public. The unannounced and warrantless inspections were held not to be in violation of constitutional protections against unreasonable search and seizure. The inspectors of the Labor Department's Occupational Safety and Health Administration (OSHA) can go further. They have noknock power to enter the premises of virtually any business in the United States, without a warrant or even prior announcement, to inspect for health and safety violations. Jail terms are provided in thre OSHA law for anyone tipping off a “raid." Federal regulatory agencies do not always feel obliged to follow normal standards of fairness in dealing with business firms. Consider the possibility of biased decision-making inherent in the recent agreement between the U.S. National Institute for Occupational Safety and Health (NIOSH), the agency that does the basic research underlying new OSHA regulations, and the Amalgamated Clothing Work ers. Under the agreement, the official federal study of safety and health hazards in the clothing industry is being conducted by a union Murray L. Weidenbaum, a former bureaucrat himself (he was once assistant secretary of the treasury), is now director of the Center for the Study of American Business at Washington University in St. Louis, and an adjunct scholar of the American Enterprise Institute. |