Delegation of Power (Update)

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The delegation doctrine concerns Congress's power to give or delegate the rulemaking authority it has to the executive or judicial branches. In most of the cases involving the doctrine, litigants have challenged congressional delegation of rulemaking authority to administrative agencies.

By the early 1980s the Supreme Court seemed to have a well-established position on the scope of Congress's power to delegate its rulemaking power. The Court held, as a matter of formal doctrine, that Congress could not delegate its power "to legislate," for such a delegation would violate the Constitution's command that "all legislative Powers … shall be vested in a Congress." But the Court also held that Congress could seek "assistance" from the other branches in exercising its legislative power and therefore could give the other branches authority to enact rules to "fill in" the details of congressional policy. Yet, although the formal doctrine purported to set some judicially enforceable limits on congressional delegations, the Court's application of the doctrine imposed virtually no limits on Congress's power to delegate rule-making authority.

The Court's decisions held that to be constitutional a delegation must contain a congressionally adopted policy or set of "intelligible principles" to guide and confine the other branch in its rulemaking activity. The Court stated that such intelligible principles were necessary to ensure that the other branch merely implemented or filled in the details of policy that Congress had adopted. It also held that the standards were necessary to give the courts a means of measuring whether the other branch had complied with the scope of Congress's delegation and thus to measure whether the other branch had acted in conformity with the "will of Congress."

This delegation doctrine was virtually without force. With two exceptions in the 1930s, the Court found that all of Congress's delegations contained sufficient intelligible principles. Many of the approved principles—such as "consistent with public convenience, interest and necessity" and "just and reasonable"—were so broad and vague that they gave the other branch seemingly unconfined discretion in exercising its rulemaking authority.

The Court's lenient, accommodating approach in applying the "intelligible principles test" led many commentators to charge that the Court paid mere lip service to the test and, as a result, failed to enforce a meaningful judicial limitation on Congress's delegations. Indeed, the Court's approach seemed to reflect a judicial judgment that congressional delegation of rulemaking authority is inevitable and desirable and that the difficulties of creating more restrictive constitutional rules or principles were greater than the benefits of doing so.

Then, in 1983, the Supreme Court did invalidate a congressional delegation of its decision-making power, and some thought that the Court might be signaling a stricter approach to delegation challenges. In immigration and naturalization service v. chadha (1983) the Court held that the one-house legislative veto was unconstitutional. For over fifty years, some legislation delegating congressional authority to the executive branch had provided that specified executive action could be annulled by one house of Congress. In Chadha, for example, Congress delegated power to the attorney general to allow aliens to remain in the country, even though their visas had expired. The legislation delegating this power provided that either house of Congress could, nonetheless, overturn the attorney general's determination in a particular case by adopting a resolution. The attorney general allowed Chadha to stay after his visa expired, but the house of representatives passed a resolution ordering him to leave. Accepting that Congress has the power to set the terms for aliens to remain in the country, the Court ruled that setting or revising those terms was a legislative act and that Congress could exercise its legislative power only through legislation, which requires action by both houses and presentation to the President. Congress could not vest its legislative power in one of its own houses.

The Chadha majority did not consider the one-house veto as a delegation issue. But as Justice byron r. white pointed out in dissent, Chadha in effect imposed a significantly more stringent limitation on Congress's power to delegate its authority than the Court had imposed in the preceding fifty years. Some thought that the Court's more stringent approach would be limited to congressional delegations to parts of Congress. Others speculated that Chadha might signal the Court's willingness to scrutinize all the delegations more closely, as some members of the Court, most notably Chief Justice william h. rehnquist, have sometimes urged.

The Court has recently indicated that speculation about the broader implications of Chadha probably is not warranted. In two significant cases during the 1988 term, the Court reaffirmed its use of the intelligible principles test and emphasized its long tradition of upholding delegations in light of the need for flexibility in formulating and enforcing federal policy. In mistretta v. united states (1989), the Court upheld Congress's delegation of power to the Sentencing Commission to promulgate a new system of determinate sentences for federal crimes. And in Skinner v. Mid-America Pipeline (1989), the Court sustained Congress's delegation of power to the secretary of transportation to establish and collect pipeline-safety user fees. The pipeline case seems particularly significant because in an earlier decision the Court had seemed to suggest that it might employ greater scrutiny in testing the constitutionality of Congress's delegation of its power to tax. Skinner belies that suggestion.

The Court's approach in delegation cases can be contrasted with its approach in cases charging that Congress has appropriated the powers of another branch. In those cases, the Court is far less deferential. For example, in bowsher v. synar (1986) the Court held that Congress acted beyond its authority in attempting to give "executive" power to the comptroller general, who is responsible to Congress, not the executive branch. The difference in judicial scrutiny may reflect a conclusion that judicial power need not be exercised to prevent one branch from giving away some of its powers but should be exercised to prevent one branch from usurping the powers of another. A branch can protect against relinquishing its own power simply by refusing to delegate; it must rely on the courts to prevent another branch from invading its domain.

Moreover, although the Court rarely invalidates congressional delegation of its rulemaking authority on constitutional grounds, the Court does require that such delegations be clearly made. Such a requirement protects against congressionally unauthorized rulemaking by the other branches. For example, in National Cable Television Association v. United States (1974), the Court held that the Federal Communications Commission overstepped its delegated authority in seeking to cover its administrative costs through user fees, noting that such fees could be viewed as taxes and that congressional delegations of its revenue-raising power should be "narrowly construed." As the Skinner case shows, Congress can delegate the power to collect revenue when it chooses to do so, but the Court will require a clear statement that such delegation is intended, lest the other branches intrude without permission into the congressional domain.

Scott H. Bice


Aranson, Peter H. et al. 1982 A Theory of Legislative Delegation. Cornell Law Review 68:1–67.

Symposium 1987 The Uneasy Constitutional Status of the Administrative Agencies: Part 1, Delegation of Powers to Administrative Agencies. American University Law Review 36: 295–442.