On the recordJanuary 18, 1995
As I read Morrison versus Olson and other separation of powers cases, the fact is that the judgment made by the Supreme Court as to whether we can or cannot delegate authority, any branch in the Federal Government may or may not delegate authority, relates not to whether they have set up procedures, but relates to whether or not the delegation of authority goes to the essence of the function of that branch. For example, we could not set in motion here, even if we wanted to, by legislation, a proposal that said the President of the United States of America shall, under the following circumstances, not only nominate but in fact confirm a Federal judge. We could not do that. We could lay out in great detail the circumstances under which a President could take over the whole responsibility of putting someone on the bench, and that would be an unconstitutional delegation of power under the separation of powers doctrine. Now, I would be very, very interested, because I know, and I mean this sincerely, how learned my friend is in the law. But I have made the serious mistake of teaching constitutional law on this subject for the last five semesters, and I have been forced to read all these cases.…
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