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Nondelegation doctrine

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See also: Taxonomy of arguments about the nondelegation doctrine and Nondelegation doctrine: a timeline

The nondelegation doctrine (sometimes hyphenated as non-delegation doctrine) is a principle of constitutional and administrative law that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. That means that lawmakers cannot allow others to make laws. In the context of the federal government, the doctrine comes from an interpretation of Article I of the United States Constitution and the separation of powers principle. Under a strict application of the nondelegation doctrine, Congress would not be allowed to let the president, administrative agencies, private corporations, or courts to pass laws.[1][2][3]

Although congressional delegation to the executive branch has been an issue in federal court cases since at least the early 19th century, the legal test the U.S. Supreme Court uses most often to apply the nondelegation doctrine came from its 1928 decision in J.W. Hampton Jr. & Company v. United States. As of 2018, the U.S. Supreme Court had not invalidated a congressional action on nondelegation grounds since A.L.A. Schechter Poultry Corp. v. United States in 1935.[1][4][3]

Vesting clause and the separation of powers

The nondelegation doctrine comes from an interpretation of Article I of the United States Constitution. The first section of that article states that all legislative powers granted by the Constitution are vested in Congress. According to the nondelegation doctrine, the language of this section bars Congress from giving away any of the legislative powers conferred upon it to other bodies.[4][2] The doctrine is also an expression of separation of powers, which refers to a system of government that divides the powers and functions of government among separate and independent entities. According to the doctrine, keeping the lawmaking power within Congress prevents the president or courts from exercising that authority.[4][5]

Intelligible principle test

The legal test used most often by the Supreme Court to apply the nondelegation doctrine, the intelligible principle test, was established in 1928. In J.W. Hampton Jr. & Co. v. United States (1928), the Supreme Court ruled that when authorizing a government official or agency to regulate or otherwise implement the law, Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." Rather than drawing a hard line against congressional delegation of legislative power, this ruling focused on the degree of discretion Congress entrusted to executive branch decision makers.[2][1]

Major applications of the doctrine by the U.S. Supreme Court

The U.S. Supreme Court has considered cases involving congressional delegations of authority at least since the 1813 case The Aurora v. United States. In that case, the court upheld a case involving contingent legislation. Contingent legislation goes into effect once certain conditions are met. Later, in the 1825 case Wayman v. Southard, the court made a distinction between exclusively legislative powers and other powers that Congress may exercise itself or give to another body. The court held that it is difficult to draw the line between an exercise of lawmaking power and an exercise of discretion by the executive branch.[6][1]

After laying out the intelligible principle test in 1928, the U.S. Supreme Court ruled against Congress and President Franklin D. Roosevelt in two nondelegation cases decided in 1935 involving provisions of the National Industrial Recovery Act. In those cases, the court held that Congress gave the executive branch too much discretion to resolve economic problems related to the Great Depression. In 1936, the court ruled that Congress had inappropriately given its legislative authority to private industry by authorizing some corporations to create industry-wide regulations on prices and wages. These cases established that Congress may not delegate its legislative authority to the executive branch and its agencies or to private persons or entities. They also include the last major cases where the courts overturned legislation on nondelegation doctrine grounds.[4][2]

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Nondelegation doctrine in theory and practice

Use of the nondelegation doctrine to invalidate congressional delegations of authority

A.J. Kritikos, a private attorney, described his view of the history of the nondelegation doctrine in a 2017 law journal article, arguing that the Supreme Court weakened the power of the nondelegation doctrine as the administrative state expanded during the 20th century:[7]

“ At the end of the nineteenth century, the U.S. Supreme Court declared: 'That [C]ongress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.' But then came the birth of the administrative state amidst the Great Depression – ushering in a new understanding of the separation of powers that emphasized functionalism over formalism. Accordingly, it has been over eight decades since the U.S. Supreme Court found a violation of the non-delegation doctrine, despite countless challenges to statutes that have included almost limitless delegations. ... An autopsy of federal non-delegation jurisprudence reveals an interesting insight: the Supreme Court has never repudiated the theoretical underpinnings of the non-delegation doctrine or questioned its importance in maintaining the separation of powers. Instead, the Court has whittled the non-delegation doctrine down to a nub because of practical concerns with implementing it.[8] ”
—A.J. Kritikos, "Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment" (2017)[7]

In a 2017 law journal article, politics professor Keith E. Whittington and legal researcher Jason Iuliano described their view of the history of the nondelegation doctrine and the debate between legal scholars who support and oppose the doctrine:[9]

“ Despite their intense disagreement over what role the nondelegation doctrine ought to play in today’s legal system, both groups of scholars agree on the role that the doctrine has played throughout U.S. history. Specifically, they all endorse the narrative that, during the nineteenth and early twentieth centuries, the nondelegation doctrine served as a meaningful check on the unbridled expansion of the administrative state. Then, during the New Deal, the Supreme Court dismantled the doctrine and paved the way for Congress to delegate away any powers it deemed appropriate. In this Article, we argue that this narrative is wrong. Drawing from our own dataset of more than two thousand nondelegation cases, we show that there was never a time in which the courts used the nondelegation doctrine to limit legislative delegations of power.[8] ”
—Keith E. Whittington and Jason Iuliano, "The Myth of the Nondelegation Doctrine" (2017)[9]

The intelligible principle test and the nondelegation doctrine

Supreme Court Justice Clarence Thomas, in an opinion in Whitman v. American Trucking Associations (2001), argued that congressional actions that met the intelligible principle test could still violate the nondelegation doctrine:[2]

“ Although this Court since 1928 has treated the 'intelligible principle' requirement as the only constitutional limit on congressional grants of power to administrative agencies, ... the Constitution does not speak of 'intelligible principles.' Rather, it speaks in much simpler terms: 'All legislative Powers herein granted shall be vested in a Congress.' I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than 'legislative.'[8] ”
—Justice Clarence Thomas, Whitman, Administrator of Environmental Protection Agency, et al. v. American Trucking Associations, Inc., et al. (2001)[2]

Criticism of the nondelegation doctrine

Law professors Eric A. Posner and Adrian Vermeule argued in a 2002 law journal article that the nondelegation doctrine is a legal fiction:[10]

“ A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power. Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academics.[8] ”
—Eric A. Posner and Adrian Vermeule, "Interring the Nondelegation Doctrine" (2002)[10]

In her 2015 law journal article "Rulemaking as Legislating," law professor Kathryn A. Watts argued that the Supreme Court should discard the nondelegation doctrine in favor of the notion that executive agencies act as delegates of Congress, in part because the doctrine is inconsistent with other principles of administrative law, including Chevron and Auer deference and the arbitrary-or-capricious test:[11]

“ Ultimately, this Article concludes that some key administrative law doctrines operate under the assumption that agency rules flow from delegations of legislative power, putting those doctrines in direct tension with the current nondelegation doctrine. In contrast, other key administrative law doctrines—consistent with the nondelegation doctrine—refuse to view agency rulemaking through a legislative lens. Thus, if the Court held that Congress constitutionally can and routinely does delegate legislative power, some central administrative law doctrines would need to be modified. Although these doctrinal changes would have their costs, this Article ultimately asserts that the changes would be normatively desirable. Many of administrative law’s disparate doctrines would gain a more unified, coherent lens centered around legislative supremacy and congressional delegation, forcing courts to take more seriously the notion that agencies act as Congress’s delegate. In addition, the Court would free itself of the longstanding doctrinal fiction that legislative rules constitute the exercise of executive power.[8] ”
—Kathryn A. Watts, "Rulemaking as Legislating" (2015)[11]

Timeline of U.S. Supreme Court cases that have shaped the nondelegation doctrine

The following timeline identifies a selection of cases decided by the United States Supreme Court that have shaped interpretations of the nondelegation doctrine.

  • Department of Transportation v. Association of American Railroads (2014)
The nondelegation challenge in Department of Transportation v. Association of American Railroads questioned whether Amtrak was a private entity for purposes of the nondelegation doctrine, echoing the crux of the nondelegation challenge that was upheld in Carter v. Carter Coal Company (1936). Challengers argued that the congressional delegation of authority to Amtrak to formulate “metrics and standards” together with the Federal Railroad Association violated the nondelegation doctrine because Amtrak was a private entity. The United States Supreme Court rejected the challenge and held that Amtrak was governmental entity.[4][12]
In a concurring opinion, Justice Clarence Thomas Thomas defended what he considers to be the importance of the separation of powers in protecting individual liberty. He also questioned the effectiveness of the intelligible principle test in determining unconstitutional delegations of authority, stating, "Although the Court may never have intended the boundless standard the 'intelligible principle' test has become, it is evident that it does not adequately reinforce the Constitution’s allocation of legislative power."[13]
The United States Supreme Court reversed a lower court decision that had declared a provision of the Clean Air Act to be in violation the nondelegation doctrine. According to the lower court, the statute had granted the Environmental Protection Agency too much discretion in determining air quality standards. The United States Supreme Court disagreed, arguing that the statute "fits comfortably within the scope of discretion permitted by our precedent."[6][14]
In a concurring opinion, Justice Clarence Thomas argued that congressional actions that met the intelligible principle test could still violate the nondelegation doctrine. He wrote, "I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than 'legislative.'" Thomas also suggested that the Supreme Court reconsider the entire jurisprudence governing the delegation of powers.[14]
John Mistretta challenged the sentence he received following his conviction of conspiracy and agreement to distribute cocaine, arguing that Congress unconstitutionally delegated the authority to promulgate sentencing rules to the United States Sentencing Commission through the Sentencing Reform Act of 1984. The United States Supreme Court rejected the challenge. Writing for the majority, Justice Harry Blackmun applied the intelligible principle test and determined that the guidelines put forth in the act were sufficiently specific and detailed to keep the Sentencing Commission's powers within constitutional boundaries.[6][2]
Though Justice Antonin Scalia dissented from the majority regarding the Sentencing Commission's lack of enforcement authority, he also rejected the nondelegation challenge. "[T]he debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree," argued Scalia. "[I]t is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law."[6][2]
  • National Broadcasting Company v. United States (1943), Yakus v. United States (1944), and American Power & Light Company v. SEC (1946)
In these cases, the United States Supreme Court rejected nondelegation challenges to broad statutes that directed federal agencies to regulate in "the public interest, convenience, or necessity," to set "fair and equitable" prices, and to prohibit "unfair or inequitabl[e]" distributions of voting power, respectively. American legal scholar Gary Lawson noted, "If statutes as vacuous as those are constitutional, the argument goes, surely there are no cognizable requirements of specificity for congressional statutes."[6]
In Carter v. Carter Coal Company the United States Supreme Court held that Congress had violated the due process clause of the Fifth Amendment by delegating legislative authority in the form of price and wage controls to a private industry group made up of coal producers and miners. The court struck down the price and wage control provisions of the Bituminous Coal Conservation Act of 1935 due to their inseparability from unconstitutional labor provisions, but Justice George Sutherland also observed that the price and wage controls demonstrated "legislative delegation in its most obnoxious form, for it is not even delegation to an official or an official body ... but to private persons whose interests may be and often are adverse to the interests of others in the same business."[4]
The United States Supreme Court struck down legislation in violation of the nondelegation doctrine in both of these cases. The court held that provisions of the National Industrial Recovery Act applicable to each case demonstrated unconstitutional delegations of congressional authority. The decisions clarified the boundaries governing the delegation of Congressional power and reiterated the intelligible principle test.[6][15]
J.W. Hampton Jr. & Company brought a claim against the constitutionality of the Tariff Act of 1922, claiming that the president's authority to adjust import duties established by the act constituted an unconstitutional delegation of legislative power. 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.[16]
Writing for the court, 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. 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."[16][17]
Marshall Field & Company challenged the Tariff Act of 1890, arguing that it unconstitutionally delegated legislative power to the President. The United States Supreme Court ruled unanimously that the tariff was constitutional since it only delegated discretionary power to the President. "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."[6][2]
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. Wayman v. Southard was one of the first cases to explore the limits of congressional delegations of power and solidified the right of Congress to delegate non-legislative powers to other federal entities.
In the case opinion, Chief Justice John Marshall stated that Congress cannot delegate powers that 'are strictly and exclusively legislative.' It may only delegate 'powers which [it] may rightfully exercise itself.' 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."[6][1]
  • The Aurora v. United States (1813)
The United States Supreme Court upheld an example of contingent legislation. Contingent legislation goes into effect once specified conditions are met. The Aurora was an early case involving the debate over the boundaries between legislative and executive power.
In the case, the court ruled that Congress could pass legislation that removed trade restrictions from Great Britain triggered by a presidential proclamation that the country had ceased interfering in the neutral commerce of the United States. A man had his cargo seized and claimed that the law was unconstitutional because it allowed the president to exercise legislative power. The court rejected that argument, allowing the president to determine when the legally-specified conditions appeared. The majority held that whether to use contingent legislation was up to the judgment of Congress.[6][18]

Nondelegation doctrine in the states

The three major categories of delegation authority in the states

Legislative delegation of authority varies by law and in practice by state. According to the National Conference of State Legislatures, states can generally be divided into the following three types:[19]

  • Strict standards and safeguards: "States in this category permit “delegation of legislative power only if the statute delegating the power provides definite standards or procedures” to which the recipient must adhere."
  • Loose standards and safeguards: "States in this category view delegation as acceptable “if the delegating statute includes a general legislative statement of policy or a general rule to guide the recipient in exercising the delegated power.”
  • Procedural safeguards: "States in this group “find delegations of legislative power to be acceptable so long as recipients of the power have adequate procedural safeguards in place."

Noteworthy delegation cases in the states

The following is a list of noteworthy court cases in the states involving delegation questions:[20]

Alaska

  • Alaska v. A.L.I.V.E. Voluntary, 606 P.2d 769 (1980)

California

  • California Radioactive Materials v. DHS, 15 Cal. App. 4th 841, 19 Cal. Rptr. 2d 357 (1993)

Colorado

  • Partridge v. Colorado, 895 P.2d 1183 (Colo. 1995)

Florida

  • Florida v. Carswell, 557 So.2d 183 (Fla. 1990)
  • Ameraquatic v. Florida, 651 So.2d 114 (Fla. 1995)

Hawaii

  • Hawaii v. Christie, 70 Haw. 158, 766 P.2d 1198 (1988)

Illinois

  • Gillett v. Logan County, 67 Ill. 256 (1873)

Kansas

  • Kansas ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976)

Kentucky

  • LRC v. Brown, 664 S.W.2d 907 (1984)

Louisiana

  • Louisiana v. Broom, 439 So.2d 357 (La. 1983)

Maryland

  • Opinion of Justices, 49 Md. App. 300, 431 A.2d 738 (1981)

Massachusetts

  • Attorney General v. Brissenden, 271 Mass. 172, 171 N.E. 82 (1930)

Mississippi

  • Dye v. Mississippi, 507 So.2d 332 (Miss. 1987)

Missouri

  • Missouri ex inf. Danforth v. Merrell, 530 S.W.2d 209 (Mo. 1975)

New York

  • Bd. Of Cmm’rs of Excise of Delaware County v. Sackrider, 8 Tiffany 154, 35 N.Y. 154 (1866)
  • In re Leach, 115 Misc. 660, 190 N.Y.S. 135 (1921)

Oklahoma

  • Ralls v. Wyand, 40 Okla. 323, 138 P. 158 (1914)

Pennsylvania

  • Pennsylvania Medical Providers Ass’n. v. Foster, 582 A.2d 888 (Pa. Cmmw. Ct. 1990)

Tennessee

  • McFaddin v. Jackson, 738 S.W.2d 176 (Tenn. 1987)

Utah

  • Utah v. Green, 793 P.2d 912 (Utah 1990)

West Virginia

  • Dancer v. Mannington, 50 W. Va. 322, 40 S.E. 475 (1901)
  • Common Cause of W. Va. V. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991)

Wisconsin

  • Wisconsin ex rel. Arnold v. City of Milwaukee, 157 Wis. 505, 147 N.W. 50 (1914)
  • State ex. rel. Wisconsin Inspection Bureau v. Whitman, 196 Wis. 472, 505-06 (1928)
  • Watchmaking Examining Board v. Husar, 49 Wis. 2d 526, 536 (1971)

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 1.3 1.4 Legal Information Institute, "Nondelegation Doctrine," accessed September 5, 2017 Cite error: Invalid <ref> tag; name "cornell" defined multiple times with different content Cite error: Invalid <ref> tag; name "cornell" defined multiple times with different content
  2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 FindLaw, "Whitman v. American Trucking Assns., Inc.," February 27, 2001 Cite error: Invalid <ref> tag; name "findlaw" defined multiple times with different content Cite error: Invalid <ref> tag; name "findlaw" defined multiple times with different content
  3. ↑ 3.0 3.1 Justia, "Delegation and Individual Liberties," accessed September 10, 2017
  4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 SCOTUSblog, "SCOTUS for law students: Non-delegation doctrine returns after long hiatus," December 4, 2014
  5. ↑ Legal Information Institute, "Separation of powers," accessed September 20, 2017
  6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 Virginia Law Review, "Delegation and Original Meaning," October 27, 2001
  7. ↑ 7.0 7.1 Missouri Law Review, "Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment," 2017
  8. ↑ 8.0 8.1 8.2 8.3 8.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  9. ↑ 9.0 9.1 University of Pennsylvania Law Review, "The Myth of the Nondelegation Doctrine," 2017
  10. ↑ 10.0 10.1 University of Chicago Law Review, "Interring the Nondelegation Doctrine," Autumn 2002
  11. ↑ 11.0 11.1 Georgetown Law Journal, "Rulemaking as Legislating," 2015
  12. ↑ Oyez, "U.S. Department of Transportation v. Association of American Railroads," accessed November 26, 2018
  13. ↑ United States Supreme Court, "DEPARTMENT OF TRANSPORTATION ET AL. v. ASSOCIATION OF AMERICAN RAILROADS," March 9, 2015
  14. ↑ 14.0 14.1 FindLaw, Whitman v. American Trucking Associations, Inc., accessed November 14, 2017
  15. ↑ Slate, "The Supreme Court May Revive a Legal Theory Last Used to Strike Down New Deal Laws," March 5, 2018
  16. ↑ 16.0 16.1 Oyez, "J.W. Hampton, Jr. & Company v. United States," accessed October 30, 2017
  17. ↑ Rowman & Littlefield Publishers, Inc., Summaries of Leading Cases on the Constitution, 50th Anniversary Edition, 2004
  18. ↑ JUSTIA, "The Aurora v. United States, 11 U.S. 382 (1813)," accessed December 1, 2018
  19. ↑ National Conference of State Legislatures," Separation of Powers—Delegation of Legislative Power," accessed November 27, 2018
  20. ↑ National Conference of State Legislatures, "Separation of Powers—Delegation of Legislative Power," accessed January 7, 2019
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