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.

The “intelligible principle” standard remains the Supreme Court’s primary test for assessing whether Congress has unconstitutionally delegated its legislative power to the other branches of the government. Under this lenient standard, the Supreme Court has repeatedly affirmed, “without deviation, Congress’s ability to delegate power under broad standards” to governmental entities.1 As the Court has explained, “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.” 2 Under the “intelligible principle” standard, the Court has upheld, for example, delegations to administrative agencies to determine “excessive profits” during wartime;3 “unfair and inequitable distribution of voting power” among securities holders;4 what are “fair and equitable” commodities prices;5 and “just and reasonable” rates that a natural gas company could charge.6 In perhaps the broadest delegation judicially challenged, the Court in National Broadcasting Co. v. United States, upheld a provision in the Communications Act of 1934 that authorized the Federal Communications Commission to regulate broadcast licensing as the “public interest, convenience, or necessity require.” 7

With the rise of the modern administrative state, the Supreme Court did not impose many restrictions on Congress’s ability to delegate power to governmental entities. In embracing a pragmatic view of its role, the Court has been reluctant to interfere with Congress’s “practical” need and flexibility to delegate and rely on the duties and expertise of the other branches of the government.8 The Court noted that its “jurisprudence has been driven by a practical understanding” about “our increasingly complex society, replete with ever changing and more technical problems.” 9 The Court has often explained that Congress lacks the technical expertise, resources, time, foresight, and the flexibility to address every detail of its policy decisions.10 Even when holding the delegation unconstitutional in Panama Refining and Schechter, the Court affirmed that the “Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality.” 11 In this vein, the Court has declared that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” 12 Denying Congress the power to delegate, the Court noted, would “'stop . . . the wheels of government’ and bring about confusion, if not paralysis, in the conduct of the public business.” 13 As a result, the Supreme Court has often acknowledged that the practical need for coordination among the three branches of government does not violate separation of powers principles that underpin the nondelegation doctrine.14

The Supreme Court’s application of the “intelligible principle” standard may also reflect the challenge in determining the appropriate line between permissible and impermissible delegations.15 Since its early nondelegation decisions, the Court has recognized the difficulty in drawing the “line which separates legislative power to make laws, from administrative authority” to execute the laws enacted by Congress.16 The “precise boundary of this [legislative] power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.” 17

Rather than characterize the delegated power as legislative or administrative, the Court has looked to how the intelligible principles laid out by Congress constrain delegations to governmental entities. As explained in Yakus v. United States,

In Yakus, the Court upheld the delegation of authority to the Price Administrator to fix commodity prices that “will be generally fair and equitable and will effectuate the purposes” of the statute.19 The Court determined that standards in the statute were “sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator, in fixing the designated prices, has conformed to those standards.” 20 Only the absence of standards or boundaries for the delegated authority, the Court reasoned, would justify “overriding” Congress’s choice to effectuate its “legislative will.” 21

This focus on statutory boundaries rather than the legislative character of the delegation is seen in the Supreme Court’s review of delegations of rulemaking authority.22 While acknowledging that regulations are “binding rules of conduct,” 23 the Court has treated such regulations as “valid only as subordinate rules when found to be within the framework of the policy which the legislature has sufficiently defined.” 24

The extent to which Congress must constrain its policy judgments or explicitly define the scope of a delegee’s discretion may depend on whether the delegee possesses inherent authority related to the delegated matter. For delegated matters that are within the expertise or independent authority of the delegee, the Supreme Court has not required that Congress provide detailed guidance or direction for the delegation.25 For example, in Loving v. United States, the Court reviewed a challenge to Congress’s delegation to the President of the authority to prescribe aggravating factors for military capital murder cases.26 The Court reasoned that “[o]nce delegated that power by Congress, the President, acting in his constitutional office of Commander in Chief, had undoubted competency to prescribe those factors without further guidance.” 27 The Court, however, cautioned that if the delegation called for “the exercise of judgment or discretion that lies beyond the traditional authority of the President,” there may be a greater need to provide guiding principles to sustain the delegation.28

The modern application of the J. W. Hampton Court’s intelligible principle test and the broad deference it affords congressional delegations of authority to the other branches has met with growing skepticism from some members of the Court.29 The 2019 case of Gundy v. United States highlighted an emerging split on the High Court with respect its nondelegation doctrine jurisprudence.30 In that case, a criminal defendant challenged a provision of the Sex Offender Registration and Notification Act (SORNA) allowing the Attorney General to (1) “specify the applicability” of SORNA’s registration requirements to individuals convicted of a sex offense prior to the statute’s enactment and (2) “prescribe rules for [their] registration” in jurisdictions where the offender resides, works, or is a student.31 Writing for a four-Justice plurality, Justice Elena Kagan interpreted this provision as limiting the Attorney General’s authority to “require pre-Act offenders to register as soon as feasible,” 32 concluding that the delegation “easily passe[d] constitutional muster.” 33 For the plurality, the Attorney General’s authority under SORNA, when compared to other delegations the Court had previously upheld, was “distinctly small-bore.” 34

Notably, Justice Kagan’s opinion was met by a dissent, authored by Justice Neil Gorsuch and joined by Chief Justice John Roberts and Justice Clarence Thomas, which argued that the statute unconstitutionally provided the Attorney General “unfettered discretion.” 35 Further, the dissenters claimed that the modern intelligible principle test has “no basis in the original meaning of the Constitution” or in historical practice.36 In response, the plurality, noting that delegations akin to the one in SORNA are “ubiquitous in the U.S. Code,” argued that as a matter of pragmatism the Court should afford deference to Congress’s judgments that such broad delegations are necessary.37 Providing the fifth vote to affirm the petitioner’s conviction was Justice Samuel Alito, who, while agreeing that the plurality correctly applied the modern nondelegation case law, indicated he would “support [the] effort” of the dissenting Justices to reconsider the intelligible principle test once a majority of the Court concurred in rethinking the doctrine.38 Accordingly, Gundy witnessed the Court evenly split on how deferential the Court should be with regard to congressional delegations to the other branches, raising questions as to whether the nondelegation doctrine would remain moribund.

Footnotes

1

Mistretta v. United States, 488 U.S. 361, 373 (1989).

2

Touby v. United States, 500 U.S. 160, 165 (1991).

3

Lichter v. United States, 334 U.S. 742, 786 (1948).

4

Am. Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90, 104 (1946).

5

Yakus v. United States, 321 U.S. 414, 427 (1944).

6

Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 602 (1944).

7

Nat’l Broad. Co. v. United States, 319 U.S. 190, 226 (1943).

8

See Wisconsin v. Illinois, 278 U.S. 367, 414 (1929) (reasoning that Congress may delegate to the Secretary of War authority to issue construction permits for canals because such matters were “a peculiarly expert question . . . that is naturally within the executive function” ).

9

Mistretta v. United States, 488 U.S. 361, 372 (1989).

10

See id. at 379 (1989) ( “Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate.” ); Am. Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90, 105 (1946) ( “The legislative process would frequently bog down if Congress were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” ); Yakus v. United States, 321 U.S. 414, 424 (1944) ( “The Constitution as a continuously operative charter of government does not demand the impossible or the impracticable. It does not require that Congress find for itself every fact upon which it desires to base legislative action or that it make for itself detailed determinations which it has declared to be prerequisite to the application of the legislative policy to particular facts and circumstances impossible for Congress itself properly to investigate.” ); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529–530 (1935) (recognizing “the necessity of adapting legislation to complex conditions involving a host of details with which the national legislature cannot deal directly” ); United States v. Grimaud, 220 U.S. 506, 516 (1911) ( “[I]t was impracticable for Congress to provide general regulations for these various and varying details of [forest reservation] management.” ); Marshall Field & Co. v. Clark, 143 U.S. 649, 694 (1892) ( “The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.” ).

11

See Schechter, 295 U.S. at 529–30 (citing Panama Ref. Co. v. Ryan, 293 U.S. 388, 421(1935)).

12

Mistretta, 488 U.S. at 372.

13

Union Bridge Co. v. United States, 204 U.S. 364, 387 (1907).

14

See Loving v. United States, 517 U.S. 748, 773 (1996) ( “Separation-of-powers principles are vindicated, not disserved, by measured cooperation between the two political branches of the Government, each contributing to a lawful objective through its own processes.” ); Buckley v. Valeo, 424 U.S. 1, 121 (1976) (per curiam) ( “Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government.” ); Yakus, 321 U.S. at 425–26 ( “Nor does the doctrine of separation of powers deny to Congress power to direct that an administrative officer properly designated for that purpose have ample latitude within which he is to ascertain the conditions which Congress has made prerequisite to the operation of its legislative command. . . . Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers.” ). The Court has noted that judicial review is available to help ensure that the administrative agencies discharge their delegated responsibilities and discretion in a reasoned manner consistent with the intelligible principles and statutory framework laid down by Congress. Am. Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90, 105 (1946); Yakus, 321 U.S. at 423, 425–26. See also Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 953 n.16 (1983) ( “That kind of Executive action is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review as well as the power of Congress to modify or revoke the authority entirely.” ).

15

Marshall Field & Co., 143 U.S. at 693; Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825).

16

United States v. Grimaud, 220 U.S. 506, 517 (1911).

17

Wayman, 23 U.S. (10 Wheat.) at 46. In attempts to draw the boundaries of legislative power, the Court has described Congress’s “essential legislative functions” or “law-making” powers under Article I, Section 1 in various ways. See, e.g., Chadha, 462 U.S. at 952, 954 (characterizing Congress’s legislative duties as “altering the legal rights, duties, and relations of persons” and determining policy); United States v. Grimaud, 220 U.S. 506, 516 (1911) (describing laws as “general rules with reference to rights of persons and property” that “create or regulate obligations and liabilities” ); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935) (explaining that “positive law” “bind[s] equally those who assent and those who do not assent” ).

18

Yakus, 321 U.S. at 425.

19

Id. at 457.

20

Id. at 425–26.

21

Id. at 426.

22

See e.g., United States v. Grimaud, 220 U.S. 506, 517 (1911) ( “From the beginning of the Government various acts have been passed conferring upon executive officers power to make rules and regulations—not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power.” ).

23

Panama Ref. Co. v. Ryan, 293 U.S. 388, 428–29 (1935). See also Batterton v. Francis, 432 U.S. 416, 425 (1977) ( “Congress . . . expressly delegated to the Secretary the power to prescribe standards for determining what constitutes “unemployment” . . . eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the Secretary adopts regulations with legislative effect.” ).

24

Panama Ref. Co., 293 U.S. at 428–29. See also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ( “It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” ).

25

See, e.g., United States v. Mazurie, 419 U.S. 544, 556–557 (1975) ( “Those limitations [on Congress’s authority to delegate its legislative power] are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter.” ).

26

Loving v. United States, 517 U.S. 748, 759 (1996).

27

Id. at 768–69. See also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 324 (1936) (holding that where foreign affairs are concerned, Congress may “either leave the exercise of the power to [the President’s] unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs” ).

28

Loving, 517 U.S. at 772.

29

See, e.g., Dep’t of Transp. v. Ass’n of Am. R.R., No. 13-1080, slip op. at 12 (U.S. Mar. 9, 2015) (Thomas, J., concurring) (arguing that the Court should “return to the original understanding of the federal legislative power” and reject the “boundless standard the ‘intelligible principle’ test has become” ); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1154 (10th Cir. 2016) (Gorsuch, J., concurring) (noting “thoughtful” commentary questioning whether the current intelligible principle test serves “as much as a protection against the delegation of legislative authority as a license for it, undermining the separation between the legislative and executive powers that the founders thought essential” ).

30

See No. 17-6086, slip op. (U.S. June 20, 2019). While criticisms of the intelligible principle doctrine have become more pronounced in recent years, some former members of the Court had argued for striking down legislation on nondelegation grounds. See, e.g., Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 675 (1980) (Rehnquist, J., concurring); Arizona v. California, 373 U.S. 546, 626–27 (1963) (Harlan, J., dissenting).

31

34 U.S.C. § 20913(d); see also Gundy, slip op. at 2 (plurality opinion) (discussing SORNA’s “basic registration scheme” ).

32

See Gundy, slip op. at 16 (plurality opinion).

33

Id. at 1.

34

Id. at 17.

35

Id. at 24 (Gorsuch, J., dissenting).

36

Id. at 17 (Gorsuch, J., dissenting).

37

Id. at 17–18 (plurality opinion).

38

Id. at 1 (Alito, J., concurring). Justice Brett Kavanaugh took no part in the consideration or decision in Gundy, as he was appointed to the Supreme Court after oral argument occurred in the case.