Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 33 (2001)

Page:   Index   Previous  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  Next

Cite as: 531 U. S. 457 (2001)

Opinion of Stevens, J.

promulgating what are candidly called 'legislative rules' "). If the NAAQS that the EPA promulgated had been prescribed by Congress, everyone would agree that those rules would be the product of an exercise of "legislative power." The same characterization is appropriate when an agency exercises rulemaking authority pursuant to a permissible delegation from Congress.

My view is not only more faithful to normal English usage, but is also fully consistent with the text of the Constitution. In Article I, the Framers vested "All legislative Powers" in the Congress, Art. I, § 1, just as in Article II they vested the "executive Power" in the President, Art. II, § 1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others. See Bowsher v. Synar, 478 U. S. 714, 752 (1986) (Stevens, J., concurring in judgment) ("Despite the statement in Article I of the Constitution that 'All legislative powers herein granted shall be vested in a Congress of the United States,' it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers"); INS v. Chadha, 462 U. S. 919, 985-986 (1983) (White, J., dissenting) ("[L]egislative power can be exercised by independent agencies and Executive departments . . ."); 1 Davis & Pierce, Administrative Law Treatise § 2.6, at 66 ("The Court was probably mistaken from the outset in interpreting Article I's grant of power to Congress as an implicit limit on Congress' authority to delegate legislative power"). Surely the authority granted to members of the Cabinet and federal law enforcement agents is properly characterized as "Executive" even though not exercised by the President. Cf. Morrison v. Olson, 487 U. S. 654, 705-706 (1988) (Scalia, J., dissenting) (arguing that the independent counsel exercised "executive power" unconstrained by the President).

It seems clear that an executive agency's exercise of rule-making authority pursuant to a valid delegation from Congress is "legislative." As long as the delegation provides a

489

Page:   Index   Previous  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  Next

Last modified: October 4, 2007