美国政府监管程序的宪法基础

The Constitutional Foundations of the U.S. Regulatory Process

美国今天的政府监管并没有明确的宪法根据。因此,行政程序遭遇到一系列严肃的质问:诸如正当性、公平性和可问责性。不过,在这三个问题上,已经发展出在功能上相当于宪法保障的体制。立法委代的假定应对了正当性难题,行政法发达的制度应对了公平性难题,司法和立法对行政程序众多正式和非正式的控制应对了问责难题。由此产生的图景并非整齐划一、逻辑严密,不过,它是一个可以运作的但却不甚稳定的解决办法,让宪法适应于其制定者不可能预见到的环境。

The paper considers whether the federal administrative process in the United States —— those regulatory agencies which govern increasing areas of our economy and our lives——is founded on proper constitutional bases. It will be seen that there is no obvious constitutional basis for today's regulatory state. For this reason, the administrative process raises serious concerns about such fundamental problems as legitimacy, fairness and accountability. What has been developed over time has been functional equivalents for the protection the constitution offers in each of these three areas. Thus the problem of legitimacy is dealt with through the fiction of legislation; the problem of fairness is dealt with through the developed system of statutory and judicial administrative law, and the problem of accountability is dealt with through a variety of formal and informal judicial and legislative controls over the administrative process. The resulting picture is not tidy or logical, but is a workable but uneasy settlement in which the constitution is adapted to circumstances the Framers could not have foreseen.