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Tuesday, September 20, 2011
Essay on Non-Delegation Doctrine - Privatization of Correctional Services
Delegation is the assignment of authority and responsibility to another person to perform certain activities and to discharge certain responsibilities. It is basically letting another person do the work that one is supposed to be doing. In the context of administrative law, delegation happens when one branch of government allows another to perform the functions which the constitution has expressly assigned to it. Under the principle of the Separation of Powers, the constitution has delegated to the Legislative Branch the power and authority to make, amend, and repeal laws. The Judiciary has the constitutional responsibility to interpret the laws and any question of law. The Executive Branch’s responsibility is to implement the law. In essence the delegation violates the principle that delegated authority can no longer be delegated.
The Non-Delegation doctrine is specifically mandated in the United States Constitution which states that “All legislative powers herein granted shall be vested in a Congress in the United States.” This is an express constitutional mandate that seeks to ensure that only the Congress shall have the power and authority to make, alter and repeal laws. One of the purposes of the Non-Delegation doctrine is to keep the power and authority to enact policies of the government in the hands of the elected officials. Secondly, when the authority and power to enact policies is restricted to the Congress it assures the public that all policies have been deliberated upon by the members of the Congress.
Though the United States Constitution has prohibited delegation, the said prohibition against the principle of delegation has been given a liberal interpretation by the Supreme Court. In giving the statement a liberal interpretation, the Supreme Court has in a number of cases said that the Congress cannot perform its responsibilities without being able to delegate its powers. Thus, the delegation has been recognized. The only issue is the limits of the power to delegate. In the case of Panama Refining Co. v. Ryan, 293 US 388 (1935), the Supreme Court said that delegation may be unconstitutional when the law delegating the Congress’ authority provides guidance to the President in determining whether or when to exercise the authority. Thus, the delegation maybe considered constitutional when the Congress provides for certain policies in the law that serve as basis in determining when and where to exercise the delegated authority.
At first glance, it may appear that the delegation of authority to private agencies is unconstitutional. It may appear to be so considering that private agencies have not been authorized under the constitution. However, the Supreme Court has declared that while the delegation to private agencies is a suspect it is not automatically unconstitutional. In the case of United States v. Dettra Flag Co. (86 F. Supp 84), the court said that the Congress may delegate the power to formulate administrative regulations provided that the Congress has established definite standards and that the private agencies act only in accordance with these standards.
However, in several cases the Supreme Court concluded that the Panama Refining Co. v. Ryan, Schechter Poultry Corp v. United States Carter v. Carter Coal Co., the Supreme Court ruled that the Congress unconstitutionally delegated its power. This is on the ground that the Congress delegated its authority to a private agency whose interest was adverse to the interest of others in the same business. In effect, the Congress violated the procedural due process.
Privatization refers to the movement or the transfer of ownership and control to the private entities of government services. The movement is being done either because the country realizes how efficient the private sector is in management or because the government seeks to earn additional revenues and that privatizing its assets and services will be instrumental in the government’s economic development program. Currently, there is a global trend towards the privation of government services. The trend is mainly because of the positive change in the governance practices brought about by globalization.
I believe that correctional services should not be privatized. The interest of private companies is to earn profits. Its main business is not to reform and rehabilitate inmates. It is still the government which should be responsible for the management of the correctional institution. Privatization is not the solution to the worsening situation of the correctional institutions.
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