From the book “Is
Administrative Law Unlawful?” Chapter 20 goes into “subdelegated”, which provides additional information how the administrative laws are nonconstitutional.
I’m going to highlight some information from time to time out of this book, however, since this book is over 600 + pages I will try to cover the most relevant
information.
"A common defense of administrative law and its consolidation of powers is delegation. A principal can’t delegate his powers to an agent, and on this basis Congress is said to delegate legislative and judicial power to the executive.
A major effect of this delegation argument is to break down the specialization of government powers. Whereas the Constitution preserves the specialization of government powers by placing them in their own specialized parts of government, delegation seems to explain how they nonetheless can be consolidated within the executive.
As it happens, the delegation defense often is more theoretical than realistic, because much executive legislation and adjudication goes beyond congressional authorization. Nonetheless, delegation is an appealing theory for defenders of administrative law, as it seems the best means of justifying the otherwise unlawful consolidation of powers.
The delegation excuse, however, misstates the problem, for the difficulty is not delegation, but subdelegation. By means of the Constitution, the people delegate power to government. In particular, they delegate specialized power to each branch of government. Accordingly, when Congress purports to give its legislative power to the executive, the question is not whether the
principal can delegate the power, but whether the agent can subdelegated.
Of course, when Congress authorizes the executive to exercise a rulemaking power that is not legislative, there is no unlawful subdelegation.
The subdelegation problem thus arises primarily where Congress authorizes others to make legally binding rules, for this binding rulemaking by its nature and by constitutional grant, is legislative. In such matters, a congressional attempt to authorize administrator’s amounts to an unlawful subdelegation of legislative power."
