입법권 위임금지법리의 재평가 - 미국의 Whitman v. American Trucking Associations, Inc.판결을 중심으로 -

Non-delegation doctrine in the USA is a legal principle under which the legislative power that exclusively belongs to the legislative branch must not be delegated to the other institution but it is now rarely used. However, as the states have become administrative states, it must be said that the importance of non-delegation doctrine as a principle which realizes rule of law and limits on arbitrariness against assertion of deference to discretion based on expertise and responsibility of the executive branch is not to disappear. Current discussions on court decisions on the cases of American Trucking Associations v. EPA and Whitman v. American Trucking Associations, Inc, a case of US Supreme Court, which are the grand finale of major textbooks of constitutional law and administrative law in terms of delegation of legislative power in the USA, show what non-delegation doctrine looks like in modern administrative state. In other words, breaking its long silence, the appellate court making a decision on ATA case applied so-called new non-delegation doctrine under which executive branch rather that legislative branch is required to present the standards including reasonable restrictions on its own discretion to consider whether intelligible principle is met or not. Receiving evaluation as reinstatement of non-delegation doctrine, those decisions have attracted a lot of attention. In its decision on Whitman, the US Supreme Court unanimously stroke down the lower court's decision but that decision is not a repudiation of new non-delegation doctrine itself. Rather, through that decision, we can see that non-delegation doctrine has become vigorously discussed because the decision considers it as a matter of legal construction of administration, in particular, a matter of restrictions on arbitrary interpretation. There are a lot of pros and cons on this new non-delegation doctrine and existing non-delegation doctrine does not lose all significance. However, in terms of the issue of uncertainty, the issue of restrictions on arbitrariness of legal interpretation of executive branch rather than violation of non-delegation doctrine has been cleary recognized as significant issue. Thus, it is the task before us that we will check what the non-delegation doctrine will look like in administrative law as a constitutional principle under which the legislative branch guarantees that it is fully responsible for significant policy decisions.