Agency discretion is delegated when legislatures cannot foresee future conduct

Evidence

Some of the more familiar of these objectionable business practices were specifically defined as illegal in the Clayton Act, in prOvisions such as section 3. With respect to these practices, no administrative determination of unfairness, or of lack of economic justification, was required, because Congress had made those determinations. But Congress was well aware that it could not foresee all of the business practices that might develop which would exhibit similar evils. These it sought to control by the more general prohibition of Section 5 of the Federal Trade Commission Act. In such a case the practice had to be freshly determined, in an administrative proceeding, to be unfair, and unfairness includes the element of lack of economic justification. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 550

Categorization

• DEFINE: Sets out the structural contrast between a bright-line rule (Clayton §3, no agency judgment needed) and a standard (FTC §5, requiring fresh administrative determination).
• XREF: connects to: An agency’s statutory breadth and continuity exceed its technical expertness as grounds for respect — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 2573; Executive discretion beyond statute is justified by law’s unavoidable incompleteness — John Locke, Second Treatise of Government, 197; Statutes emerge as skeletons that agencies flesh out through regulation. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1393 (+1 more)

Broader Connections

• Executive discretion beyond statute is justified by law’s unavoidable incompleteness #corroborates (0.85) — John Locke, Second Treatise of Government, 197