Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

While the Supreme Court has declared categorically that “the legislative power of Congress cannot be delegated,” 1 and on other occasions has recognized more forthrightly, as Chief Justice John Marshall did in 1825, that, although Congress may not delegate powers that “are strictly and exclusively legislative,” it may delegate “powers which [it] may rightfully exercise itself.” 2 The categorical statement has never been literally true, the Court having upheld the delegation at issue in the very case in which the statement was made.3 The Court has long recognized that administration of the law requires exercise of discretion,4 and that, “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” 5 The real issue is where to draw the line. Chief Justice Marshall recognized “that there is some difficulty in discerning the exact limits,” and that “the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.” 6 Accordingly, the Court’s solution has been to reject delegation challenges in all but the most extreme cases, and to accept delegations of vast powers to the President or to administrative agencies.

During the nineteenth and early twentieth centuries, the nondelegation doctrine developed slowly, partly due to the relatively few statutes that were enacted and the lack of executive agencies to exercise those delegations.7 In early nondelegation cases, the Supreme Court upheld various delegations of authority to the President, administrative agencies, and the judiciary.8 For example, in Wayman v. Southard, the Court upheld the Process Acts of 1789, which authorized the federal courts to issue writs to execute their judgments.9 In Wayman, the Court declared that “Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.” 10 His opinion distinguished between “important” policy issues, “which must be entirely regulated by the legislature itself,” and subjects “of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.” 11 Later, in Marshall Field & Co. v. Clark,12 the Court affirmed Congress’s grant of power to the President to impose import tariffs only if the President determined that other nations imposed “unequal or unreasonable” tariffs on American exports.13 The Court reasoned that Congress must “make the law, which necessarily involves a discretion as to what it shall be,” and its delegations may only “confer[ ] authority and discretion as to its execution, to be exercised under and in pursuance of the law.” 14

While acknowledging the Congress may delegate some authority in these early decisions, the Supreme Court began to clarify the role of the delegee with respect to Congress and draw the boundary between permissible and impermissible delegations. In these early nondelegation cases, the Court determined that governmental entities acted as a “mere agent” to administer and effectuate the laws and “essential” 15 policy decisions Congress enacted and were not exercising legislative power.16 To ensure the delegations were not boundless, the Court also required that the delegations of authority must stay “within the great outlines marked out by the legislature.” 17

Footnotes

1

United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). See also Field v. Clark, 143 U.S. 649, 692 (1892).

2

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 41 (1825).

3

The Court in Shreveport Grain & Elevator upheld a delegation of authority to the Food and Drug Administration to allow reasonable variations, tolerances, and exemptions from misbranding prohibitions that were backed by criminal penalties. It was “not open to reasonable dispute” that such a delegation was permissible to fill in details “impracticable for Congress to prescribe.”

4

J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928) ( “In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination” ).

5

Mistretta v. United States, 488 U.S. 361, 372 (1989). See also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) ( “Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.” ).

6

Wayman v. Southard, 23 U.S. (10 Wheat.) at 42. For particularly useful discussions of delegations, see 1 K. Davis, Administrative Law Treatise Ch. 3 (2d ed., 1978); L. Jaffe, Judicial Control of Administrative Action ch. 2 (1965).

7

See David Schoenbrod, Power without Responsibility: How Congress Abuses the People through Delegation 31–33 (1993) (discussing the history of the nondelegation doctrine and the lack of “strong, lawmaking agencies” during the nineteenth century); Jon D. Michaels, Constitutional Coup: Privatization’s Threat to the American Republic 41–42 (2017) (discussing the development of federal administrative power from the “smattering of key federal agencies” that existed before the Civil War to the current modern administrative state). See also Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 420–21 (2017) (analyzing the number of nondelegation cases before and after 1880s).

8

See Peter H. Aranson et al., A Theory of Legislative Delegation, 68 Cornell L. Rev. 1, 7 (1982) (discussing early challenges to the congressional delegations).

9

23 U.S. (10 Wheat.) 1, 14 (1825).

10

Id. at 42.

11

Id. at 1, 6, 43.

12

143 U.S. 649 (1892).

13

Id. at 699.

14

Id. at 693–94 (quoting Cincinnati, Wilmington, & Zansville, R.R. v. Comm’rs of Clinton Cty., 1 Ohio St. 77, 88 (1852)).

15

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529–30 (1935).

16

See United States v. Grimaud, 220 U.S. 506, 516 (1911) (upholding the constitutionality of regulations and criminal penalties promulgated by the Secretary of Agriculture regarding the use of federal grazing lands, reasoning that “Congress was merely conferring administrative functions upon an agent, and not delegating to him legislative power” ); Marshall Field & Co. v. Clark, 143 U.S. 649, 693 (1892) (holding that the delegation of authority to the President to suspend import tariffs was constitutional as the President was acting as “the mere agent of the law-making department to ascertain and declare the event upon which [Congress’s] expressed will was to take effect” ); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6, 43 (1825) (upholding Congress’s delegation of the authority to the judiciary to establish procedures for executing judgments because the judiciary was exercising this delegated power to act pursuant to “general provisions to fill up the details” ).

17

Wayman, 23 U.S. (10 Wheat.) at 45.