Line-drawing arguments concerning the nondelegation doctrine: Determining the permissibility or impermissibility of delegations
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One of the main areas of inquiry and disagreement concerning to the nondelegation doctrine is how to draw the line between a legislative act that engages in permissible delegation versus one that crosses the line into impermissible delegation. This page presents one of the different ways that scholars and courts have distinguished between legislative statutes that confer permissible powers to an agency through delegations of authority and those that violate the nondelegation doctrine through impermissible delegations.
There are two main approaches to where and how to draw the line:
Permissible vs. impermissible delegations
Below is a selection of approaches to drawing the line between permissible and impermissible delegations. The following approaches have been compiled from legal opinions by the United States Supreme Court, existing legislative practices, and analysis by administrative law scholars.
Delegation lines drawn by the United States Supreme Court
Exploring the line between permissible and impermissible delegations: Wayman v. Southard
Wayman v. Southard (1825) was one of the first cases to explore the limits of congressional delegations of power and solidified the right of Congress to delegate power to other federal entities. The United States Supreme Court held that Congress' delegation of authority to create federal court procedures to the federal courts themselves did not represent an unconstitutional delegation of legislative power.
In the case opinion, Chief Justice John Marshall explores the line between permissible and impermissible delegations, stating that Congress cannot delegate powers that "are strictly and exclusively legislative."[1] It may only delegate "powers which [it] may rightfully exercise itself."[1] He further observed that the line between delegable and non-delegable powers is inherently blurred: "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily."[2][1]
Identifying the underlying directive: intelligible principle test
Writing for the court in J.W. Hampton Jr. & Company v. United States (1928), Chief Justice William Howard Taft developed the intelligible principle test—a guiding principle that the United States Supreme Court continues to reference in determining the constitutionality of congressional delegations of authority.[3] Taft stated that Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform," and concluded that "such legislative action is not a forbidden delegation of legislative power."[3] In this way, Taft's intelligible principle test aims to draw a line between authorized and unauthorized delegations of power by identifying the underlying intelligible principle that directs each delegation.[4][3]
Delegation lines drawn by the U.S. Constitution
Scholars have argued that congressional delegations of authority are contrary to the Vesting Clauses of the United States Constitution. These clauses vest legislative, executive, and judicial authority in their respective branches of government. Legislative power, in particular, is vested in Congress through Article 1, Section 1 of the U.S. Constitution. The clause states that “[a]ll legislative powers herein granted shall be vested in a Congress.”[2]
Administrative law scholar Gary Lawson claims that unconstitutional delegations of authority infringe on the lines put in place by the Constitution's Vesting Clauses.[2] He writes, “The Constitution clearly–and one must even say obviously–contemplates some such lines among the legislative, executive, and judicial powers. The vesting clauses, and indeed the entire structure of the Constitution, otherwise make no sense. The Constitution does not merely create the various institutions of the federal government; it vests, or clothes, those institutions with specific, distinct powers."[2]
Contingent legislation: identifying the line between implementation and regulation
Contingent legislation is "legislation in which Congress conditions the force of the new law on a determination to be made by the President," according to attorney and scholar Robert Sarvis.[5] In other words, contingent legislation allows Congress to delegate authority to the president that the president can later exercise in response to certain triggering conditions stipulated in the legislation. Legislation that allows the president to adjust tariff rates is an example of contingent legislation. The United States Supreme Court first expressly permitted contingent legislation in Cargo of the Brig Aurora v. United States (1813).[2][5]
Contingent legislation "provides a wide range of contexts for delegation analysis," according to Lawson.[2] He writes, "The question is when, if ever, determination of those [trigger] events passes beyond the implementational function of executive and judicial agents and instead becomes lawmaking." Thus, Lawson identifies the line-drawing problem in cases of contingent legislation as a question of whether the executive branch serves to implement a legislatively enacted regulatory scheme or, instead, engages in independent lawmaking beyond the scope of executive authority.[2]
Nondelegation challenges to contingent legislation
The United States Supreme Court considered the following noteworthy challenges to contingent legislation on nondelegation grounds during the late 19th and early 20th centuries:
- Field v. Clark (1892): In Field v. Clark, Marshall Field & Company challenged the Tariff Act of 1890, arguing that it unconstitutionally delegated legislative power to the President.[6] The United States Supreme Court ruled unanimously that the legislation was constitutional since it only delegated discretionary power to the President.[6] "What the President was required to do was simply in execution of the act of Congress," stated Justice John Harlan in the opinion. "It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect."[2][6]
- J.W. Hampton Jr. & Company v. United States (1928): In J.W. Hampton Jr. & Company v. United States, J.W. Hampton Jr. & Company brought a claim against the constitutionality of the Tariff Act of 1922.[4] The plaintiff claimed that the president's authority to adjust import duties established by the act constituted an unconstitutional delegation of legislative power.[4] The United States Supreme Court held that Congress did not delegate legislative power to the executive because it provided the president with clear instructions on when and how to adjust the tariff rates established by the law.[4]
- J.W. Hampton moved beyond Field v. Clark in terms of the analysis of contingent legislation, according to Lawson.[2] He wrote that the case allowed for a regulatory scheme "in which the President actually adjusts the tariff rates rather than merely determining whether pre-existing, congressionally-specified tariff schedules will take effect."[2] Thus, J.W. Hampton blurred the line between executive implementation of contingent legislation and independent regulatory activity on behalf of the president in response to a legislative contingency.[2]
Rules vs. goals statutes: demarcating permissible and impermissible delegations
Law professor David Schoenbrod developed a distinction between what he refers to as rules statutes and goal statutes as a means to determine a statute's validity.[2] Rules statutes put forth specific rules of conduct to guide government entities charged with their implementation while goals statutes lay out broad policy goals without a specific plan to bring the policy into effect.[2] Schoenbrod stated, "[T]he statute itself must speak to what people cannot do; the statute may not merely recite regulatory goals and leave it to an agency to promulgate the rules to achieve those goals."[2]
Schoenbrod's distinction between rules and goals statutes aims to draw a line between legislation that puts forth permissible and impermissible delegations of authority.[2] According to Schoebrod's formulation, a rules statute clearly "demarcates permissible from impermissible conduct" and, therefore, constitutes a valid exercise of delegated authority. A goals statute, on the other hand, is an impermissible exercise of delegation because it does not sufficiently guide agencies through the implementation of a policy priority.[2]
See also
- Search Google News for this topic
- Nondelegation doctrine
- Taxonomy of arguments about the nondelegation doctrine
- Ballotpedia's administrative state coverage
Footnotes
- ↑ 1.0 1.1 1.2 Legal Information Institute, "The History of the Doctrine of Nondelegability," accessed November 27, 2018
- ↑ 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 Virginia Law Review, "Delegation and Original Meaning," 2002
- ↑ 3.0 3.1 3.2 Rowman & Littlefield Publishers, Inc., Summaries of Leading Cases on the Constitution, 50th Anniversary Edition, 2004
- ↑ 4.0 4.1 4.2 4.3 Oyez, "J.W. Hampton, Jr. & Company v. United States," accessed October 30, 2017
- ↑ 5.0 5.1 University of New Hampshire Law Review, "Legislative Delegation and Two Conceptions of the Legislative Power," June 2006
- ↑ 6.0 6.1 6.2 FindLaw, Field v. Clark, accessed December 12, 2017
