Legislative Theory and the Rule of Law: Some Comments on Rubin

Professor Rubin's article is an admirable piece of work on many levels, from its attention to jurisprudence to its concern with the practical changes in the Congress and its function, and their implications. In commenting on it, I mean to restrict myself to the latter subjects. These are the matters that have the closest tangency to my own work and produce for me the strongest response. Professor Rubin has given us a compelling statement of the problems posed for contemporary constitutional and legislative theory by one transformation in statutory practice accompanying the rise of the administrative state, the change from direct ("transitive") legislative resolution of policy problems to indirect ("intransitive") resolution through the empowerment of agents who are to determine policy problems under instruction. These changes, he argues, undercut such conventional doctrinal norms as "delegation" and "void-for-vagueness" as means for assessing legislative action.