CRS Annotated Constitution

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Legislative Powers

Contingent Legislation.—An entirely different problem arises when, instead of directing another department of govern[p.77]ment to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended, or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of “filling up the details” of a statute, authority for it must be sought elsewhere than in the first theory. It is to be found in an even earlier case, The Brig Aurora,70 where the revival of a law upon the issuance of a presidential proclamation was upheld. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices which violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Court answered briefly that “we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct.”71

The theory was utilized again in Field v. Clark,72 where the Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated commodities “for such time as he shall deem just” if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions, which “he may deem to be reciprocally unequal and unjust.” In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents, which demonstrated that “in the judgment of the legislative branch of the government, it is often desirable, if not essential, . . . to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations;”73 (2) that the act did “not, in any real sense, invest the President with the power of legislation. . . . Congress itself prescribed, in advance, the duties to be levied, . . . while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. . . . He had no discretion in the premises except in respect to the duration of the suspension so ordered.”74 By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922[p.78]whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President.75

The Effective Demise of the Nondelegation Doctrine

“[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”76 The modern doctrine may be traced in its inception to the 1928 case in which the Court, speaking through Chief Justice Taft, upheld congressional delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries.77 Although formally looking to the contingency theory, the Court’s opinion also looked forward, emphasizing that in seeking the cooperation of another branch Congress was restrained only according to “common sense and the inherent necessities” of the situation.78 This vague statement was elaborated somewhat in the statement that the Court would sustain delegations whenever Congress provided an “intelligible principle” to which the President or an agency must conform.79

Supplement: [P. 78, add to text following n.79:]

The infirm state of the nondelegation doctrine was demonstrated further in Loving v. United States.1 Article 118 of the Uniform Code of Military Justice (UCMJ) 2 provides for the death penalty for premeditated murder and felony murder for persons subject to the Act, but the statute does not comport with the Court’s capital punishment jurisprudence, which requires the death sentence to be cabined by standards so that the sentencing authority is constrained to narrow the class of convicted persons to be so sentenced and to justify the individual imposition of the sentence.3 However, the President in 1984 had promulgated standards that purported to supply the constitutional validity the UCMJ needed.4

The Court held that Congress could delegate to the President the authority to prescribe standards for the imposition of the death penalty—Congress’ power under Article I, Sec. 8, cl. 14, is not exclusive—and that Congress had done so in the UCMJ by providing that the punishment imposed by a court–martial may not exceed “such limits as the President may prescribe.” 5 Acknowledging that a delegation must contain some “intelligible principle” to guide the recipient of the delegation, the Court nonetheless held this not to be true when the delegation was made to the President in his role as Commander–in–Chief. “The same limitations on delegation do not apply” if the entity authorized to exercise delegated authority itself possesses independent authority over the subject matter. The President’s responsibilities as Commander–in–Chief require him to superintend the military, including the courts–martial, and thus the delegated duty is interlinked with duties already assigned the President by the Constitution.6

In the course of the opinion, the Court distinguished between its usual separation–of–powers doctrine—emphasizing arrogation of power by a branch and impairment of another branch’s ability to carry out its functions—and the delegation doctrine, “another branch of our separation of powers jurisdiction,” which is informed not by the arrogation and impairment analyses but solely by the provision of standards,7 thus confirming what has long been evident that the delegation doctrine is unmoored to separation–of–powers principles altogether.


70 7 Cr. (11 U.S.) 382 (1813).
71 Id., 388.
72 143 U.S. 649 (1892).
73 Id., 691.
74 Id., 692, 693.
75 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).
76 Mistretta v. United States, 488 U.S. 361, 372 (1989). “Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).
77 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).
78 Id., 406.
79 Id., 409. The “intelligible principle” test of Hampton is the same as the “legislative standards” test of A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935).

Supplement Footnotes

1 517 U.S. 748 (1996) . The decision was unanimous in result, but there were several concurrences reflecting some differences among the Justices.
2 10 U.S.C. Sec. Sec. 918(1), (4).
3 The Court assumed the applicability of Furman v. Georgia, 408 U.S. 238 (1972) , and its progeny, to the military, 517 U.S. at 755–56, a point on which Justice Thomas disagreed, id. at 777.
4 Rule for Courts–Martial; see 517 U.S. at 754.
5 10 U.S.C. Sec. Sec. 818, 836(a), 856.
6 517 U.S. at 771–74.
7 Id. at 758–59.
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