norml23 - Page 73

 Mr. Justice Rehnquist, not surprisingly, took the most radical
 position of all. He would hold that the wideJy divergent opinions of
 the members of the Supreme Court as to-what kind of standard, proved,
 by themselves, that the Congress had improperly delegated its
 legislative function to an administrative agency° _d. at 2879. The
 remainder of Justice Rehnquist's opinion consists of analysis of the
 legislative history of the statute under scrutiny against the backdrop
 of the odgJn, developments, and present content of the nondelegation
 doctrine. In a characteristic tour-de-force of jurisprudential
 reasoning, Justice Rehnquist concluded that American law has come fu[r
 circle from John Locke's Second Treatise of Civil Government (1960),
 through the era of excessive deference to Congressional delegation of
 power to executive agencies, and back to the recognition that Locke was
 right in the first place:
 We ought not to shy away from our judiciaJ duty to
 invalidate unconstitutional delegations of
 legislative authority solely out of concern that we
 should thereby reinvigorate discredited
 constitutional doctrines of the pre-New DeaE era.
 ..Jndeed, a number of observers have suggested
 that this Court should once more take up its burden
 of insuring that Congress does not unnecessarily
 delegate important choices of sociaJ poticy to
 politically unresponsive administrators.
 Id. at 2886. (Citations omitted)°
 In two footnotes to the test just quoted, Justice Rehnquist cites
 exampJes of the growing list of proponents for a return to a Schechter
 Poultry/Panama Refining skepticism of overly broad delegations, as well
 as examples of the contrary view most prominently associated with
 Professor Kenneth Culp Davis, that the courts shouJd focus on the
 actions of the administrators to whom power had been delegated rather
 than on the delegation from the Congress in the first instance.
 In the course of his lengthy and biting analysis, Justice
 Rehnquist identifies the three policy issues subsumed in the
 nondelegation doctrine. First, the insistence that Congress enact the
 laws insures that important choices of socia_ policy wi[_ be made by
 the branch of our government most responsive to the popular wi&