Delegation of Power

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Early in American constitutional history the Supreme Court announced a rule that Congress could not delegate its power to the President or others. Yet the practical demands of an increasingly complex governmental environment have forced Congress to delegate, often quite broadly. The Court has rationalized all but a few delegations without abandoning the rule of nondelegation. This has been accomplished through successively more permissive formulations of the rule. Though the rule is in a state of desuetude, some revival is possible in the aftermath of the Court's invalidation of a legislative veto in immigration and naturalization service v. chadha (1983).

A few commentators call the rule against delegations a judge-made doctrine lacking genuine constitutional status. This suggests the untenable proposition that genuine rules of constitutional law must be explicit in the constitutional document. Building on a common law maxim against redelegation of delegated authority and on john locke's observation that only the sovereign people can determine the legitimate location of legislative authority, most commentators have found nondelegation implicit in the separation of powers and in concepts of representative government and due process of law. The status of the rule thus secured, debate has concentrated on exactly what it prohibits.

As if the rule prohibited all delegations, nineteenth-century judges tried to reconcile it with the practical needs of government by denying that delegations in fact were delegations in law. In The Brig Aurora (1813) the Supreme Court held that Congress had not breached the rule by empowering the President to make factual finding on which the application of a previously declared congressional policy—an embargo—was contingent. In Wayman v. Southard (1825) the Court permitted a delegation to federal judges for "filling up the details" of part of the Federal Process Act of 1792. Though the rules announced in these cases were modest when stated in the abstract, the delegations themselves were the objects of acrimonious political conflict. By the early 1900s, power to declare facts and fill up details had become the foundation for the delegation of such discretionary authority to the President and administrative agencies as power to decide which grades of tea to exclude from import, to make rules regulating grazing on lands in national forests, and even to vary tariffs on imported goods.

In J. W. hampton & company v. united states (1928) the Court formulated a more realistic delegation doctrine when it acknowledged that transfers of discretionary authority were essential to the effectiveness of Congress's will in modern conditions. The new rule was that congressional delegation is permissible if governed by adequate "legislative standards," a term that now includes statutory specifications of facts to be declared, preambulatory statements of legislative purpose, and even judicial imputations of legislative purpose inferred from legislative and administrative history.

The Court has rarely taken the standards requirement seriously. Illustrative of a pattern that prevails to the present, Federal Radio Commission v. Nelson Brothers (1933) found adequate guidance for issuing radio station licenses in what Congress called the "public convenience, interest, and necessity." This pattern was interrupted when the Court unexpectedly used the delegation doctrine against the national industrial recovery act (1933) in panama refining company v. ryan (1935) and schechter poultry corporation v. united states (1935). But the spirit of these decisions was not to survive, and by the middle of World War II the Court had returned to using the delegation doctrine more for rationalizing than for limiting transfers of congressional power.

As if delegations were not broad enough, the Court in United States v. Mazurie (1975) suggested an even more permissive approach. united states v. curtiss-wright export corporation (1936) had seemed to hold that because the President had independent powers in the field of foreign affairs, the standards requirement for congressional delegations to the President could be relaxed in that area. At a time when Panama and Schechter had recently limited the scope of delegated power, Curtiss-Wright was a reasonable move toward flexibility in foreign affairs. But Curtiss-Wright featured an unorthodox theory of extra-constitutional or inherent governmental power, and the need for a special approach to foreign affairs delegations disappeared as the Court returned to its old permissiveness toward delegations generally. During the vietnam war, however, the nondelegation doctrine was raised in opposition to American policy, and, although the Court successfully avoided the issue, government lawyers invoked CurtissWright before congressional committees. One of these lawyers was william h. rehnquist, who later led the Court to its first reaffirmation of Curtiss-Wright 's delegation doctrine in Mazurie, a relatively noncontroversial case involving a delegation to the tribal council of an American Indian tribe over liquor sales on a reservation. The tribe's council, said Justice Rehnquist, had "independent authority over tribal life," just as the President had over foreign affairs, and Curtiss-Wright was cited for a new rule that the standards requirement is "less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter." In light of what "less stringent" can mean today, Mazurie has a potential for rationalizing virtual abdications of congressional responsibility, not only to the President but to the states, whose legal claims to "independent authority" are stronger than that of Indian tribal councils.

Since the 1930s and with accelerated frequency after the Vietnam War, Congress used the legislative veto to recapture power lost through broad delegations. To the extent—perhaps modest—that regulatory and political conditions permit, Congress may choose to delegate more narrowly now that the legislative veto is unavailable. And if the Court really has renewed its commitment to the separation of powers, it may honor the standards requirement with something more than mere lip service.

Sotirios A. Barber


Barber, Sotirios A. 1975 The Constitution and the Delegation of Congressional Power. Chicago: University of Chicago Press.

Davis, Kenneth C. 1958 Administrative Law Treatise. St. Paul, Minn.: West Publishing Co.