Administrative Discretion, Delegation of

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ADMINISTRATIVE DISCRETION, DELEGATION OF. Article I of the Constitution provides that "all legislative Powers herein granted shall be vested in a Congress of the United States." Congress thus holds the supreme legislative power and is the primary policy-making body in the U.S. government. Before the New Deal, it was widely believed that Congress could not delegate the power to make national policy to non-elected bodies such as administrative agencies. This so-called non-delegation doctrine kept administrative agencies small and weak. They could enforce laws established by Congress but were unable to develop policy themselves.

The non-delegation doctrine was thought to have a number of benefits. First, it kept the policy-making power of the federal government in the hands of elected officials, who arguably would be attuned to the interests of the citizenry. Second, keeping the legislative authority within Congress helped ensure that the policy-making process was deliberative. Moreover, the bicameral nature of the legislature coupled with the executive veto power ensured that only those decisions reaching a level of consensus would be adopted.

The doctrine had costs as well, and these became more obvious during the Great Depression. The economic and social upheaval created by the Depression convinced many that the federal government needed to be much more proactive in crafting economic policy, protecting those hurt by the Depression, and fashioning social and economic regulations. The greatest danger, some thought, was not government action but rather government inaction. Also, there was rising concern that the problems facing the nation were too complex and immediate for Congress to address effectively.

In the New Deal, Congress created a number of administrative agencies to regulate and set policy in their areas of jurisdiction. In order to maximize the benefits of expertise and regulatory flexibility, Congress generally created administrative agencies with the authority to regulate a given economic activity.

In 1935, however, the Supreme Court in two cases struck down congressional delegations of power. In Panama Refining Co. v. Ryan (1935), the Court struck down portions of the National Industrial Recovery Act of 1933 as too broadly delegating authority to the National Recovery Administration to establish a code of fair competition for various industries. In Schechter Poultry Corp. v. United States (1935), the Court considered the Act again and struck it down in its entirety. One key defect in the Act was Congress's delegation of policy-making power to private groups that themselves were subject to the competition codes. These cases established the legal rule that in order for a delegation to be constitutional, Congress must define an intelligible principle to guide administrative regulation and to limit administrative discretion.

Once the Court announced this intelligible principle rule, however, it became more relaxed in authorizing congressional delegations. In fact, the Supreme Court has not struck down a congressional statute on non-delegation grounds since 1935. The Court does, however, occasionally cite the non-delegation doctrine as a reason to interpret a regulatory statute narrowly.

The principles of accountability and deliberation that provided the foundation of the non-delegation doctrine continue to be important for administrative agencies, though they are bolstered through other mechanisms. The norm of accountability is protected with the use of internal procedures, for example with the use of notice and comment periods in the drafting of regulations, which gives interested parties the right to participate in the regulatory process. Accountability is also protected because the president appoints the heads of most agencies and can thus hold them accountable for the policy decisions they make. Congress can also oversee agencies through congressional hearings, budgetary oversight, and statute.

The principle of agency deliberation is bolstered by the requirement of considered decision-making in both rulemaking and adjudication. Courts enforce this requirement by reviewing agency actions to ensure they are not arbitrary, capricious, an abuse of discretion, or contrary to law.

A vigorous non-delegation doctrine is also a principle in many state constitutions. This makes sense, in that state legislatures govern smaller jurisdictions than Congress, tend to regulate less complex matters, and can be more flexible than Congress.


Aman, Alfred C., Jr., and William T. Mayton. Administrative Law. 2d ed. St. Paul, Minn.: West, 2001.

Schwartz, Bernard, Administrative Law. 3d ed. Boston: Little, Brown, 1991.


See alsoAdministrative Justice .

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