At the center of the problem of administrative management in the Federal Government stands the rule-making power, and this for two reasons: First, there are no fewer than 115 Federal agencies that, under 964 statutory provisions and 71 Executive orders and proclamations, issue rules and regulations that affect the public. This means that rule-making constitutes no inconsiderable part of the total function of administration for the supervision of which the President is responsible to the people. Second, rule-making in the form of Executive orders is one of the principal techniques available to the President for the overall management not only of departmental rulemaking but also of the service operations of the Executive Branch.

The rule-making powers of these 115 Federal agencies find their source in statutory delegations. Such delegations are no recent novelty in the Federal Government. The practice is sanctioned by a history that dates from the administration of President Washington, but reached its highest peaks in four periods of national emergency. Quite aside, however, from any emergency, there has for several decades been a general trend in the direction of increased use of this technique.

This trend is not to be deplored. Long experience teaches the unmistakable lesson that, in a complex and rapidly changing modern economy, delegated rule-making is an indispensable feature of governmental regulation. "Nearly everyone concedes", said the 1934 Report of the Special Committee on Administrative Law of the American Bar Association, "that the necessities of modern Government business require a certain amount of such delegation."

It is possible conservatively to go further. This trend is not even to be looked upon as a necessary evil. It is rather to be regarded as a normal and, if properly safeguarded, highly desirable development of the American system. For rule-making is a principal means by which, entirely within the framework of the Constitution as interpreted by the Supreme Court, the machinery of an eighteenth century Government has been adapted to the requirements of twentieth century governmental problems.

The rule of law demands that the basic policies of governmental regulation be embodied in statutes; but it does not demand that the Congress freeze into its statutes a mass of

details. The ideal statute steers a middle course between the Scylla of attempting to anticipate every possible situation and the Charybdis of expressing no policy except that in an empty formula. It defines in general terms the policy that the administrator is to pursue, the objectives that he is to seek, and the limits within which he is to operate. It then authorizes him to translate that policy into more concrete terms before applying it to particular cases. In this view the rule-making power appears as a means of introducing the rule of law at the administrative level.

By deliberately adopting this philosophy of legislation, the Congress would acquire more time for its primary tasks: Deliberation on the fundamentals of policy and investigation of the use that administrative agencies make of their delegated powers. It would materially strengthen the position of Congress as the forum of national debate, as the representative assembly of the Nation, and in its real control of administration.

As a means of working out policies in detail, regulations have decided advantages over statutes. For this there are two main reasons. First, regulations are more readily altered. This enables the administrator more easily to correct mistakes, to keep pace with changing conditions-in short, to achieve flexibility and avoid red tape. Second, the professional administrator is altogether in a better position than the legislator to utilize technical information and guidance.

One of the most serious aspects of governmental regulation of business is the uncertainty of the law. The administrator must necessarily interpret the law in the very act of applying it; and the Congress may authorize interpretative regulations. But this by itself does not furnish certainty to the businessman. Under the American system the courts are the final interpreters of the law, and may later determine that the administrative interpretations were incorrect. By amendments to the Securities Act of 1933 and the Securities Exchange Act of 1934, the Congress expressly enacted that no provision of those acts imposing any liability should apply to any act done or omitted in good faith in conformity with regulations, notwithstanding that such regulations might thereafter be determined by judicial or other authority to be invalid for any reason. Coupled with a general power to issue inter

3