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Friday, June 11, 2010

Presumption that Delegated Power would be employed Rationally

The Court has historically been reluctant to entertain facial attacks on statutes, i.e., claims that a statute is invalid in all of its applications. Our normal approach has been to determine whether a law is unconstitutional as applied in the particular case before the Court.This rule is also the usual approach we follow when reviewing laws that require licenses or permits to engage in business or other activities. In New York ex rel. Lieberman v. Van De Carr, [1905] USSC 187; 199 U.S. 552, 26 S.Ct. 144, 50 L.Ed. 305 (1905), for example, plaintiff in error was convicted of selling milk in New York City without a permit. Plaintiff in error claimed before this Court that the licensing law vested arbitrary power in an administrative board to select those who would be permitted to sell milk. This Court's response was:
"[Prior] cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment.

 There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorize the interference of a Federal court." Id., at 562, 26 S.Ct., at 146.

There being no showing that the law had been unconstitutionally applied to plaintiff in error, his conviction was affirmed. "One who is required to take out a license will not be heard to complain, in advance of application, that there is a danger of refusal. He should apply and see what happens." Highland Farms Dairy, Inc. v. Agnew, [1937] USSC 65; 300 U.S. 608, 616-617[1937] USSC 65; , 57 S.Ct. 549, 553[1937] USSC 65; , 81 L.Ed. 835 (1937) (citations omitted). Other cases are to the same effect. Thus, the usual rule is that a law requiring permits for specified activities is not unconstitutional because it vests discretion in administrative officials to grant or deny the permit. TheConstitution does not require the Court to assume that such discretion will be illegally exercised. Douglas v. Noble, [1923] USSC 38; 261 U.S. 165, 170[1923] USSC 38; , 43 S.Ct. 303, 305[1923] USSC 38; , 67 L.Ed. 590 (1923); Lieberman, supra, 199 U.S., at 562, 26 S.Ct., at 146.

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