Gavin Howe
The question of whether Congress can delegate its law-making authority is a complex one, informed by two distinct constitutional principles: separation of powers and due process. While the non-delegation doctrine holds that Congress cannot delegate its legislative powers or law-making ability to other entities, the Supreme Court has recognised that Congress may delegate powers which it may rightfully exercise itself. This has been upheld by the Court in recognition of the increasing complexity of society and the need for Congress to be able to delegate power under broad general directives.
| Characteristics | Values |
|---|---|
| Can Congress delegate law-making authority? | Yes, but only to a certain extent. |
| What is the non-delegation doctrine? | The principle that Congress cannot delegate its legislative powers or law-making ability to other entities. |
| What does the non-delegation doctrine involve? | Congress delegating its powers to administrative agencies or private organisations. |
| What is the Supreme Court's view? | The Supreme Court has sometimes declared that the legislative power of Congress cannot be delegated, but on other occasions has recognised that Congress may delegate powers which it may rightfully exercise itself. |
Separation of powers
The separation of powers is a key principle of the US Constitution, designed to protect liberty by prescribing a process for making laws, with accountability checkpoints.
The non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making ability to other entities. This is most commonly used in connection with administrative law and constitutional law. However, the Supreme Court has recognised that Congress may delegate powers which it may rightfully exercise itself.
The extent to which Congress can delegate its legislative powers has been informed by two distinct constitutional principles: separation of powers and due process. A rigid application of separation of powers would prevent the lawmaking branch from divesting itself of any of its power and conferring it on one of the other branches. However, the doctrine is not so rigidly applied as to prevent conferral of significant authority on the executive branch.
In J.W. Hampton v. United States (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an "intelligible principle" on which to base their regulations. This standard is viewed as quite lenient and has rarely, if ever, been used to strike down legislation.
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Due process
The extent to which Congress can delegate its legislative powers has been informed by two distinct constitutional principles: separation of powers and due process.
The non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making ability to other entities. This prohibition typically involves Congress delegating its powers to administrative agencies or private organisations.
However, the Supreme Court has recognised that Congress may not be able to do its job without the ability to delegate power under broad general directives. In 1825, Chief Justice Marshall recognised that, although Congress may not delegate powers that are strictly and exclusively legislative, it may delegate powers which it may rightfully exercise itself.
In J.W. Hampton v. United States (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an "intelligible principle" on which to base their regulations. This standard is viewed as quite lenient, and has rarely, if ever, been used to strike down legislation.
The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process, there are many accountability checkpoints.
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Administrative law
The non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making ability to other entities. This prohibition typically involves Congress delegating its powers to administrative agencies or to private organisations.
The non-delegation doctrine is most commonly used in connection with administrative law and constitutional law. In J.W. Hampton v. United States (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an "intelligible principle" on which to base their regulations. This standard is viewed as quite lenient, and has rarely, if ever, been used to strike down legislation.
The extent to which Congress can delegate its legislative powers has been informed by two distinct constitutional principles: separation of powers and due process. A rigid application of separation of powers would prevent the lawmaking branch from divesting itself of any of its power and conferring it on one of the other branches. But the doctrine is not so rigidly applied as to prevent conferral of significant authority on the executive branch.
The Supreme Court has sometimes declared categorically that the legislative power of Congress cannot be delegated, and on other occasions has recognised more forthrightly that, although Congress may not delegate powers that are strictly and exclusively legislative, it may delegate powers which "it may rightfully exercise itself". 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. The Court has long recognised that administration of the law requires the exercise of discretion, and that, in our increasingly complex society, Congress simply cannot do its job without an ability to delegate power under broad general directives. The real issue is where to draw the line.
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Constitutional law
The non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making ability to other entities. This prohibition typically involves Congress delegating its powers to administrative agencies or private organisations. The non-delegation doctrine is most commonly used in connection with administrative law and constitutional law.
The extent to which Congress can delegate its legislative powers has been informed by two distinct constitutional principles: separation of powers and due process. A rigid application of separation of powers would prevent the law-making branch from divesting itself of any of its power and conferring it on one of the other branches. However, the doctrine is not so rigidly applied as to prevent conferral of significant authority on the executive branch.
The Supreme Court has sometimes declared categorically that the legislative power of Congress cannot be delegated. On other occasions, it has recognised that, although Congress may not delegate powers that are strictly and exclusively legislative, it may delegate powers which it may rightfully exercise itself. The Court has long recognised that the administration of the law requires the exercise of discretion, and that in an increasingly complex society, Congress cannot do its job without the ability to delegate power under broad general directives. The real issue is where to draw the line.
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Liberty
The non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or lawmaking ability to other entities. However, the Supreme Court has recognised that Congress may delegate powers which it may rightfully exercise itself. The non-delegation doctrine is most commonly used in connection with administrative law and constitutional law.
The extent to which Congress can delegate its legislative powers has been informed by two distinct constitutional principles: separation of powers and due process. A rigid application of separation of powers would prevent the lawmaking branch from divesting itself of any of its power and conferring it on one of the other branches. However, the doctrine is not so rigidly applied as to prevent conferral of significant authority on the executive branch.
In J.W. Hampton v. United States (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an "intelligible principle" on which to base their regulations. This standard is viewed as quite lenient, and has rarely, if ever, been used to strike down legislation.
The principle that Congress cannot delegate away its vested powers exists to protect liberty. The Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints.
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Frequently asked questions
No, the non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making ability to other entities.
The non-delegation doctrine is most commonly used in connection with administrative law and constitutional law. It prohibits Congress from delegating its powers to administrative agencies or private organisations.
The principle that Congress cannot delegate away its vested powers exists to protect liberty. The Constitution prescribes a process for making law, and within that process, there are many accountability checkpoints.
