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CRS Annotated Constitution

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Yet, for the most part, these holdings do not, as Justice Sutherland suggested, directly affect “the internal affairs” of the nation; they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those which have taken place under cover of the doctrine—the vast expansion in recent years of national legislative power in the regulation of commerce among the States and in the expenditure of the national revenues. Verbally, at least, Marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in McCulloch v. Maryland.


Origin of the Doctrine of Nondelegability

“That the legislative power of Congress cannot be delegated is, of course, clear.” 51 This 1932 statement has never been literally true, the delegation at issue in the very case in which the statement was made was upheld, and the Court in recent years has felt little constrained to much more than bow in the direction of the doctrine.Yet the doctrine of nondelegation of legislative powers and the permissible exception of delegation accompanied by standards[p.74]have so settled a place in constitutional jurisprudence that notice must be given at some length.52

At least three distinct ideas contributed to the development of the doctrine that legislative power cannot be delegated. The first idea is the doctrine of separation of powers, the idea that the law–making power is vested in the legislative branch, the law–executing power in the executive branch, and the law–interpreting power in the judicial branch.53 Is it not a violation of the doctrine to permit the law– making branch to divest itself of some of its power and confer it on one or the other of the other branches or to particular offices in the other branch?

The second idea is a due process conception precluding the transfer of regulatory functions to private persons, a distinct specie of the delegation doctrine not relevant usually in the field of administration, of delegation to another public agency.54

The third idea concerns the maxim “delegata potestas non potest delegari,” which John Locke borrowed from agency and offered as a principle of political science.55 In J. W. Hampton, Jr., & Co. v. United States,56 Chief Justice Taft explained the origin and limitations of this phrase as a postulate of constitutional law. “The well–known maxim ‘delegata potestas non potest delegari,’ applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private law. The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. . . . [I]n carrying out that constitutional division . . . it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power.”


But whatever the source or combination of sources of the doctrine, decisions of the Court accepting without comment delegations of vast powers to administrative or executive agencies constitute a de facto recognition that Congress in the exercise of its granted powers, in conjunction with its necessary and proper power, often cannot either foresee or resolve problems of application of general laws to specific situations. Thus, “[d]elegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.”57

Delegation Which Is Permissible

“It will not be contended,” wrote Chief Justice Marshall in 1825, “that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.”58 “This is not to say,” said Chief Justice Taft, “that the three branches are not co–ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it 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 governmental co–ordination.”59 Chief Justice Marshall frankly noted “that there is some difficulty in discerning the exact limits” on the legislative power to delegate. Thus, “the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.”60

Two theories suggested themselves to the early Court to justify the results of sustaining delegations. The Chief Justice alluded to the first in Wayman v. Southard.61 He distinguished between “important” subjects, “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.” While his distinction may be lost, the theory of the power “to fill up the details” is impressively modern law.


A second theory, formulated even earlier, is that Congress may legislate contingently, leaving to others the task of ascertaining the facts that bring its declared policy into operation.62

Filling Up the Details.—At issue in Wayman v. Southard63 was the contention that Congress had unconstitutionally delegated power to the federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States.64 Chief Justice Marshall agreed that the rule–making power was a legislative function and that Congress could have formulated the rules itself, but he denied that the delegation was impermissible. Since then, of course, Congress has authorized the Supreme Court to prescribe rules of procedure for the lower federal courts.65 Filling up the details of statutes was long a popular version of the nature of permissible delegations.

Thus, when Congress required the manufacturers of oleomargarine to have their packages “marked, stamped and branded as the Commissioner of Internal Revenue . . . shall prescribe,” the Court sustained the conviction of one selling his goods without the markings against his objection that he was prosecuted not for violation of law but for violation of a regulation.66 “The criminal offence,” said Chief Justice Fuller, “is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail.”67 Kollock was not the first such case,68 but it was to be followed by a multitude of delegations and the sustaining of them. Soon thereafter the Court on the same theory upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States.69


51 United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). See also Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).
52 For particularly useful discussions of delegations, see 1 K. Davis, Administrative Law Treatise (St. Paul: 2d ed., 1978), Ch. 3; L. Jaffe, Judicial Control of Administrative Action (Boston: 1965), ch. 2.
53 Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).
54 Carter v. Carter Coal Co., 298 U.S. 238, 310–312 (1936). Since the separation–of–powers doctrine is inapplicable to the States as a requirement of federal constitutional law, Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902), it is the due process clause to which federal courts must look for authority to review the delegation by state legislatures of power to others which the legislature might have exercised directly. E.g., Eubank v. City of Richmond, 226 U.S. 137 (1912); Embree v. Kansas City Road District, 240 U.S. 242 (1916).
55 J. Locke, Second Treatise on Government (London: 1691), Ch. 11, 141.
56 276 U.S. 394, 405–406 (1928).
57 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).
58 Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 41 (1825).
59 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).
60 Id., 10 Wheat. (23 U.S.), 42.
61 Id., 41.
62 The Brig Aurora, 7 Cr. (11 U.S.) 382 (1813).
63 10 Wheat. (23 U.S.) 1 (1825).
64 Act of May 8, 1792, Sec. 2, 1 Stat. 275, 276 .
65 The power to promulgate rules of civil procedure was conferred by the Act of June 19, 1934, 48 Stat. 1064 , now 28 U.S.C. Sec. 2072 ; the power to promulgate rules of criminal procedure was conferred by the Act of June 29, 1940, 54 Stat. 688 , now 18 U.S.C. Sec. 3771 . In both instances Congress provided for submission of the rules to it with the power presumably to change or to veto the rules. Additionally, Congress has occasionally legislated rules itself. E.g., 82 Stat. 197 (1968), 18 U.S.C. §§ 3501 –02 (admissibility of confessions in federal courts).
66 In re Kollock, 165 U.S. 526 (1897).
67 Id., 533.
68 United States v. Bailey, 9 Pet. (34 U.S.) 238 (1835); Caha v. United States, 152 U.S. 211 (1894).
69 Buttfield v. Stranahan, 192 U.S. 470 (1904). See also United States v. Grimaud, 220 U.S. 506 (1911) (executive officials to make rules governing use of forest reservations); ICC v. Goodrich Transit Co., 224 U.S. 194 (1912) (prescribing methods of accounting for carriers in interstate commerce).
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