Gavin Howe
The non-delegation doctrine is a principle that prohibits Congress from delegating its legislative powers or lawmaking abilities to other entities, including administrative agencies or private organizations. While the Supreme Court has occasionally declared that legislative power cannot be delegated, it has also acknowledged that Congress may delegate powers that it rightfully exercises itself. Since 1935, the Court has approved Congress's ability to delegate power under broad standards, upholding delegations related to wartime profit determination, voting power distribution, and broadcast licensing, among others. The Court has refined the delegation doctrine in cases involving Fifth Amendment due process interests, emphasizing that agencies can only assert interests Congress has charged them with promoting. This topic has sparked debates about the extent of Congress's delegation of powers and the role of regulatory agencies in lawmaking.
| Characteristics | Values |
|---|---|
| Can Congress delegate its power? | The Supreme Court has declared that the legislative power of Congress cannot be delegated. However, it has also recognized that Congress may delegate powers that it may rightfully exercise itself. |
| Can Congress delegate its power to the President? | Yes, in the case of United States v. Shreveport Grain & Elevator Co., the Supreme Court upheld Congress's delegation to the President of the authority to set tariff rates. |
| Can Congress delegate its power to an agency? | The non-delegation doctrine states that Congress cannot delegate its legislative powers or law-making abilities to other entities, including administrative agencies or private organizations. However, in practice, the Supreme Court has allowed delegations to administrative agencies since 1935. |
| What are the limitations on Congress's ability to delegate power? | When delegating regulatory power to an agency, Congress must provide an intelligible principle that guides and limits the agency's discretion. The delegation must also be constrained by the scope of the power conferred. |
| Why does Congress delegate its power? | Congress delegates its power to agencies to enact popular regulatory statutes while avoiding the responsibility for the cost and burdens of regulatory implementation. |
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What You'll Learn
The non-delegation doctrine
The origins of the non-delegation doctrine can be traced back to at least 1690, when John Locke wrote:
> The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others.
In J.W. Hampton v. United States, the Supreme Court clarified that when Congress does give an agency the ability to regulate, it 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 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.
Since 1935, the Court has not struck down a delegation to an administrative agency. Instead, the Court has approved, without deviation, Congress's ability to delegate power under broad standards. For example, the Food and Drug Administration (FDA) is an agency in the executive branch created by Congress with the power to regulate food and drugs in the US. Congress has given the FDA a broad mandate to ensure the public's safety and prevent false advertising, but it is up to the agency to assess risks and announce prohibitions on harmful additives, and to determine the process by which actions will be brought.
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Congress's ability to delegate power under broad standards
The non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making abilities to other entities. This prohibition typically involves Congress delegating its powers to administrative agencies or to private organizations.
The Supreme Court has sometimes declared categorically that "the legislative power of Congress cannot be delegated". However, on other occasions, it has recognized that, although Congress may not delegate powers that are strictly and exclusively legislative, it may delegate powers that it may rightfully exercise itself. Chief Justice Marshall recognized that there is some difficulty in discerning the exact limits of Congress's ability to delegate powers, and that the legislative branch must be able to delegate some powers in order to effectively administer laws and address complex, technical problems.
Since 1935, the Court has not struck down a delegation to an administrative agency. Instead, the Court has approved Congress's ability to delegate power under broad standards. For example, the Court has upheld delegations to administrative agencies to determine excessive profits during wartime, to determine unfair distribution of voting power among securities holders, to fix fair and equitable commodity prices, and to regulate broadcast licensing as the public interest requires.
The Court has also held that when Congress gives an agency the ability to regulate, it must provide the agency with an "intelligible principle" on which to base its regulations. This standard is viewed as quite lenient and has rarely, if ever, been used to strike down legislation.
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The Supreme Court's role
The Supreme Court has a significant role in determining whether Congress can delegate its power to create law to agencies. While the Supreme Court has at times categorically stated that the legislative power of Congress cannot be delegated, there are exceptions to this. For instance, Chief Justice Marshall recognised in 1825 that while Congress cannot delegate powers that are "strictly and exclusively legislative", it may delegate powers that it "may rightfully exercise itself".
The Supreme Court has upheld Congress's ability to delegate power under broad standards. For example, the Court has approved Congress's delegation of power to administrative agencies to determine excessive profits during wartime, to address unfair distribution of voting power, to fix fair prices, and to regulate broadcast licensing.
The Court has also clarified that when Congress gives an agency the power to regulate, it must provide the agency with an "intelligible principle" on which to base its regulations. This principle was emphasised in J.W. Hampton v. United States in 1928. However, the Court has not always been consistent in its application of this principle, and since 1935, it has not struck down any delegations to administrative agencies.
In recent years, the Supreme Court has limited the authority of federal agencies, with potential far-reaching implications for health policy and other areas. For example, the Court has shifted policy decisions from agency technical experts to federal judges, and emphasised that courts, not agencies, should resolve statutory ambiguities. The Court has also invoked the non-delegation doctrine, a principle that Congress cannot delegate its legislative powers to other entities, to strike down a federal law, although this has not occurred since 1935.
In summary, the Supreme Court plays a crucial role in interpreting and determining the limits of Congress's ability to delegate its power to create law to agencies. While the Court has recognised that Congress may delegate some powers, it has also emphasised the need for intelligible principles to guide agency regulations and has recently taken steps to curb the authority of federal agencies.
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The legislative power of Congress
The House of Representatives and the Senate have different ways of processing legislation due to their constitutional differences. The House's rules allow a numerical majority to process legislation quickly, while the Senate's rules favour deliberation and provide individual Senators with procedural leverage. Congressional action is typically planned and coordinated by party leaders in each chamber. The President also has influence in the legislative process, as they recommend an annual budget and suggest legislation. The President's power to veto legislation can also affect the content of bills passed by Congress, as it is unusual for a law to be enacted over a presidential veto.
While Congress has the sole power to make new laws or change existing ones, it can delegate some of its legislative powers to administrative agencies or the President. For example, Congress has delegated the authority to set tariff rates to the President and the authority to regulate broadcast licensing to administrative agencies. The Supreme Court has held that Congress cannot delegate its legislative powers, but it has also recognized that Congress may delegate powers that it "may rightfully exercise itself". The non-delegation doctrine holds that Congress cannot delegate its legislative powers to other entities, but this has been interpreted leniently by the Supreme Court, which has upheld Congress's ability to delegate power under broad standards.
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The delegation of regulatory power
The Court has upheld delegations to administrative agencies in a variety of areas, such as determining excessive profits during wartime, unfair distribution of voting power, setting fair prices for commodities, and regulating broadcast licensing. The Court has also upheld statutory delegations to private persons or entities, such as granting the American Railway Association the power to determine the standard height of draw bars for freight cars.
The Court's opinion emphasizes that Congress should be restrained by common sense and the inherent necessities of the situation when delegating powers. The Court will sustain delegations when Congress provides an "intelligible principle" to which the recipient of the delegated power must conform. This standard is viewed as lenient and has rarely been used to strike down legislation.
In the United Kingdom, the Delegated Powers and Regulatory Reform Committee, appointed by the House of Lords, examines whether the delegations in each Bill are appropriate. The Committee considers whether the provisions of a bill inappropriately delegate legislative power or subject it to an inappropriate degree of parliamentary scrutiny. The Committee's role is to ensure that the tests set out in the Legislative and Regulatory Reform Act 2006 have been met, and it does not examine the merits of the overall policy or the policy proposed.
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Frequently asked questions
Yes and no. The Supreme Court has declared that "the legislative power of Congress cannot be delegated". However, it has also recognised that Congress may delegate powers which it may rightfully exercise itself.
In practice, this means that Congress can delegate powers to the President or an agency, as long as it provides an "intelligible principle" to which the President or agency must conform.
Congress has delegated power to administrative agencies to determine excessive profits during wartime, to determine unfair distribution of voting power, to fix fair prices, to determine just and reasonable rates, and to regulate broadcast licensing.
The non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making ability to other entities, including administrative agencies or private organisations.
