Particular Subjects or Concerns—Closer Scrutiny or Uniform Standard?

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 Court has strongly implied that the same principles govern the validity of a delegation regardless of the subject matter of the delegation. “[A] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.” 1 Holding that “the delegation of discretionary authority under Congress’s taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges,” the Court explained in Skinner v. Mid-America Pipeline Company2 that there was “nothing in the placement of the Taxing Clause” in Article I, § 8 that would distinguish it, for purposes of delegation, from the other powers enumerated in that clause.3 Thus, the test in the taxing area is the same as for other areas—whether the statute has provided the administrative agency with standards to guide its actions in such a way that a court can determine whether the congressional policy has been followed.

This does not mean that Congress may delegate its power to determine whether taxes should be imposed. What was upheld in Skinner was delegation of authority to the Secretary of Transportation to collect “pipeline safety user fees” for users of natural gas and hazardous liquid pipelines. “Multiple restrictions” placed on the Secretary’s discretion left no doubt that the constitutional requirement of an intelligible standard had been met. Cases involving the power to impose criminal penalties, described below, further illustrate the difference between delegating the underlying power to set basic policy—whether it be the decision to impose taxes or the decision to declare that certain activities are crimes—and the authority to exercise discretion in implementing the policy.

Crime and Punishment

The Court has confessed that its “cases are not entirely clear as to whether more specific guidance is in fact required” for delegations relating to the imposition of criminal sanctions.4 It is clear, however, that some essence of the power to define crimes and set a range of punishments is not delegable, but must be exercised by Congress. This conclusion derives in part from the time-honored principle that penal statutes are to be strictly construed, and that no one should be “subjected to a penalty unless the words of the statute plainly impose it.” 5 Both Schechter6 and Panama Refining7 —the only two cases in which the Court has invalidated delegations—involved broad delegations of power to “make federal crimes of acts that never had been such before.” 8 Thus, Congress must provide by statute that violation of the statute’s terms—or of valid regulations issued pursuant thereto—shall constitute a crime, and the statute must also specify a permissible range of penalties. Punishment in addition to that authorized in the statute may not be imposed by administrative action.9

However, once Congress has exercised its power to declare certain acts criminal, and has set a range of punishment for violations, authority to flesh out the details may be delegated. Congress may provide that violation of valid administrative regulations shall be punished as a crime.10 For example, the Court has upheld a delegation of authority to classify drugs as “controlled substances,” and thereby to trigger imposition of criminal penalties, set by statute, that vary according to the level of a drug’s classification by the Attorney General.11

Congress may also confer on administrators authority to prescribe criteria for ascertaining an appropriate sentence within the range between the maximum and minimum penalties that are set by statute. The Court upheld Congress’s conferral of “significant discretion” on the Sentencing Commission to set binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants.12 Although the Commission was given significant discretionary authority “to determine the relative severity of federal crimes, . . . assess the relative weight of the offender characteristics listed by Congress, . . . to determine which crimes have been punished too leniently and which too severely, [and] which types of criminals are to be considered similar,” Congress also gave the Commission extensive guidance in the Act, and did not confer authority to create new crimes or to enact a federal death penalty for any offense.13

Delegation and Individual Liberties

Some Justices have argued that delegations by Congress of power to affect the exercise of “fundamental freedoms” by citizens must be closely scrutinized to require the exercise of a congressional judgment about meaningful standards.14 The only pronouncement in a majority opinion, however, is that, even with regard to the regulation of liberty, the standards of the delegation “must be adequate to pass scrutiny by the accepted tests.” 15 The standard practice of the Court has been to interpret the delegation narrowly so as to avoid constitutional problems.16

Perhaps refining the delegation doctrine, at least in cases where Fifth Amendment due process interests are implicated, the Court held that a government agency charged with the efficient administration of the executive branch could not assert the broader interests that Congress or the President might have in barring lawfully resident aliens from government employment. The agency could assert only those interests Congress charged it with promoting, and if the action could be justified by other interests, the office with responsibility for promoting those interests must take the action.17 (app.), and sustained in Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978).

Footnotes

1

Lichter v. United States, 334 U.S. 742, 778–79 (1948).

2

490 U.S. 212, 223 (1989). In National Cable Television Ass'n v. United States, 415 U.S. 336, 342 (1974), and FPC v. New England Power Co., 415 U.S. 345 (1974), the Court had appeared to suggest that delegation of the taxing power would be fraught with constitutional difficulties. It is difficult to discern how this view could have been held after the many cases sustaining delegations to fix tariff rates, which are in fact and in law taxes. J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892); see also FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976) (delegation to President to raise license “fees” on imports when necessary to protect national security). Nor should doubt exist respecting the appropriations power. See Synar v. United States, 626 F. Supp. 1374, 1385–86 (D.D.C.) (three-judge court), aff'd on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).

3

490 U.S. at 221. Nor is there basis for distinguishing the other powers enumerated in § 8. See, e.g., Loving v. United States, 517 U.S. 748 (1996). But see Touby v. United States, 500 U.S. 160, 166 (1991) (it is “unclear” whether a higher standard applies to delegations of authority to issue regulations that contemplate criminal sanctions), discussed in the next section.

4

Touby v. United States, 500 U.S. 160, 166 (1991).

5

Tiffany v. National Bank of Missouri, 85 U.S. (18 Wall.) 409, 410 (1873).

6

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

7

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

8

Fahey v. Mallonee, 332 U.S. 245, 249 (1947).

9

L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) ( “[I]t is for Congress to prescribe the penalties for the laws which it writes. It would transcend both the judicial and the administrative function to make additions to those which Congress has placed behind a statute” ).

10

United States v. Grimaud, 220 U.S. 506 (1911). The Forest Reserve Act at issue in Grimaud clearly provided for punishment for violation of “rules and regulations of the Secretary.” The Court in Grimaud distinguished United States v. Eaton, 144 U.S. 677 (1892), which had held that authority to punish for violation of a regulation was lacking in more general language authorizing punishment for failure to do what was “required by law.” 220 U.S. at 519. Extension of the principle that penal statutes should be strictly construed requires that the prohibited acts be clearly identified in the regulation. M. Kraus & Bros. v. United States, 327 U.S. 614, 621 (1946). The Court summarized these cases in Loving v. United States, 517 U.S. 748 (1996), drawing the conclusion that “there is no absolute rule . . . against Congress’s delegation of authority to define criminal punishments.”

11

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

12

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

13

488 U.S. at 377–78. “As for every other offense within the Commission’s jurisdiction, the Commission could include the death penalty within the guidelines only if that punishment was authorized in the first instance by Congress and only if such inclusion comported with the substantial guidance Congress gave the Commission in fulfilling its assignments.” Id. at 378 n.11.

14

United States v. Robel, 389 U.S. 258, 269 (1967) (Justice Brennan concurring). The view was specifically rejected by Justices White and Harlan in dissent, id. at 288–89, and ignored by the majority.

15

Kent v. Dulles, 357 U.S. 116, 129 (1958).

16

Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith, 390 U.S. 17 (1968); Greene v. McElroy, 360 U.S. 474, 506–08 (1959) (Court will not follow traditional principles of congressional acquiescence in administrative interpretation to infer a delegation of authority to impose an industrial security clearance program that lacks the safeguards of due process). More recently, the Court has eschewed even this limited mode of construction. Haig v. Agee, 453 U.S. 280 (1981).

17

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (5-to-4 decision). The regulation was reissued by the President, E. O. 11935, 3 C.F.R. 146 (1976), reprinted in 5 U.S.C. § 3301 (app.), and sustained in Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978).