CRS Annotated Constitution

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The Regulatory State.—Except for two Depression–era cases in which standards were found to be absent, the Court has never voided as impermissible a congressional delegation.80 The now familiar pattern of regulation of important segments of the economy by boards or commissions, which combine in varying proportions the functions of all three departments of government, was first established by the States in the field of railroad rate regulation. Discovering that direct action was impracticable, the state legislatures created commissions to deal with the problem. One of the pioneers in this development was Minnesota, whose supreme court justified[p.79]the practice in an opinion, which, with the implied81 and later the explicit,82 endorsement of the United States Supreme Court, practically settled the law on this point: “If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever–varying conditions of traffic.”83 Contemporaneously, Congress created the Interstate Commerce Commission to regulate the rates and practices of railroads with respect to interstate commerce. Although the Supreme Court has never had occasion to render a direct decision on the delegation of rate–making power to the Commission, it has repeatedly affirmed rate orders issued by that agency.84

Breathtaking has been the breadth of delegations sustained. Congress has given the Interstate Commerce Commission the responsibility to approve railroad consolidations found to be in the “public interest,”85 and conferred powers on the Federal Radio Commission86 and the Federal Communications Commission87 to license broadcasting stations as the “public convenience, interest and necessity” may require. In the field of communications still, the exercise of power by the FCC, pursuant to statute, to exert jurisdiction and authority over an industry that did not exist at the time Congress enacted the statute and that was unforeseen by Congress has been found to be valid.88 The Supreme Court directed a regulatory agency acting under delegated powers to exercise its own judgment about whether competition or restraint would be in the[p.80]public interest in the communications field rather than to attempt to extrapolate a principle favoring one or the other from the body of congressional law.89

The Court has upheld the delegation to the Federal Power Commission of authority to determine “just and reasonable” rates.90 Agencies have been held properly to have received power to determine whether rates and charges were too high or excessive.91 Regulation of corporate conduct has been extended to close supervision of activity.92

In Mistretta v. United States,93 the Court approved congressional delegations to the Sentencing Commission, an independent agency in the judicial branch, to develop and promulgate guidelines binding federal judges and cabining their discretion in sentencing criminal defendants. Although the Court enumerated the standards Congress had provided, it admitted that significant discretion existed with respect to making policy judgments about the relative severity of different crimes and the relative weight of the characteristics of offenders that are to be considered, but it was forthright in stating that delegations may carry with them “the need to exercise judgment on matters of policy.”94

That this latter observation is indubitably true is revealed in many case results. Thus, the Court has upheld complex economic regulations of industries in instances in which the agencies had first denied possession of such power, had unsuccessfully sought authorization from Congress, and had finally acted without congressional guidance.95 It has also recognized that when Administrations changes, new officials may have been conferred enough discretion so that they can change agency policies, often to a considerable degree, so that both previous and present agency policies may be consistent with congressional delegations.96


Despite some dicta to the contrary, it appears that there is no power Congress cannot delegate. “[A] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.”97 Denying that it had ever suggested that the taxing power was nondelegable, the Court has placed that congressional authority on the same plane of permissible delegation.98 Nor is there a problem with the fact that in exercising a delegated power the President or another officer may effectively suspend or rescind a law passed by Congress. A rule or regulation properly promulgated under authority received from Congress is law and under the supremacy clause of the Constitution can preempt state law,99 and likewise it can supersede a federal statute. Early cases sustained giving the President upon the finding of certain facts to revive or suspend a law,100 and the President’s power to raise or lower tariff rates equipped him to alter statutory law.101 Similarly, in Opp Cotton Mills v. Administrator,102 Congress’ decision to delegate to the Wage and Hour Administrator of the Labor Department the authority, after hearings and findings by an industry committee appointed by him, to establish a minimum wage in particular industries greater than the statutory minimum but no higher than a prescribed figure was sustained. Congress has not often expressly addressed the issue of repeals or supersessions, but in authorizing the Supreme Court to promulgate rules of civil and criminal proce[p.82]dure and of evidence it directed that such rules supersede previously enacted statutes with which they conflicted.103

Recent concerns in the scholarly literature with respect to the scope of the delegation doctrine,104 have been reflected within the judicial writings of some of the Justices.105 Nonetheless, the Court’s most recent decisions evidence no doubt of the constitutional propriety of very broad delegations,106 and the practice will doubtlessly remain settled.


80 See Mistretta v. United States, 488 U.S. 361, 371–379 (1989) (extensively reviewing doctrinal foundation and case law). See also Skinner v. Mid–America Pipeline Co., 490 U.S. 212, 218–224 (1989); Touby v. United States, 500 U.S. 160, 164–168 (1991).
81 The Court reversed the decision of the state supreme court on the grounds that the rates fixed by the commission were not subject to judicial review, a due process violation, but the opinion implicitly sanctioned the exercise of ratemaking powers by such bodies. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418 (1890).
82 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
83 State v. Chicago, Milwaukee & St. Paul Ry. Co., 38 Minn. 288, 301, 37N.W.782,788 (1888), revd, on other grounds, 134 U.S. 418 (1890).
84 ICC v. Louisville & Nashville R.R., 227 U.S. 88 (1913); New York v. United States, 331 U.S. 284, 340–350 (1947), and cases cited. See also New York v. United States, 342 U.S. 882 (1951); American Trucking Assns. v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967).
85 New York Central Securities Co. v. United States, 287 U.S. 12, 25 (1932).
86 Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933).
87 National Broadcasting Co. v. United States, 319 U.S. 190 (1943).
88 United States v. Southwestern Cable Co., 392 U.S. 157 (1968) (regulation of cable television under the 1934 Communications Act). See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (approving promulgation of rules on the “fairness doctrine” and “right to reply” privilege in the absence of congressional enactment).
89 FCC v. RCA Communications, 346 U.S. 86 (1953).
90 FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944).
91 Yakus v. United States, 321 U.S. 414 (1944) (wartime delegation to administrator to fix commodity prices that would be fair and equitable); Lichter v. United States, 334 U.S. 742 (1948) (wartime delegation to determine excessive profits by defense industries). See also Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F.Supp. 737 (D.D.C. 1971) (three–judge court) (upholding imposition of nationwide price and wage controls by President upon general delegation).
92 American Light & Power Co. v. SEC, 329 U.S. 90 (1946) (upholding delegation of authority to Securities and Exchange Commission to prevent unfair or inequitable distribution of voting power among security holders).
93 488 U.S. 361 (1989).
94 Id., 378.
95 E.g., Permian Basin Area Rate Cases, 390 U.S. 747 (1968); American Trucking Assns. v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967).
96 Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842–845, 865–866 (1984) (“[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.” Id., 865). See also Motor Vehicle Mfgrs. Assn. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 42–44, 46–48, 51–57 (1983) (recognizing agency could have reversed its policy but finding reasons not supported on record).
97 Lichter v. United States, 334 U.S. 742, 778–779 (1948).
98 Skinner v. Mid–America Pipeline Co., 490 U.S. 212 (1989). In National Cable Television Ass. 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. How this conclusion could have been thought viable after the many cases sustaining delegations to fix tariff rates, which are in fact and law taxes, J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892); and see 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), is difficult to discern. Nor should doubt exist respecting the appropriations power. See Synar v. United States, 626 F.Supp. 1374, 1385–1386 (D.D.C.) (three–judge court), affd. on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).
99 City of New York v. FCC, 486 U.S. 57, 63–64 (1988); Louisiana PSC v. FCC, 476 U.S. 355, 368–369 (1986); Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153–154 (1982).
100 E.g., The Brig Aurora, 7 Cr. (11 U.S.) 382 (1813).
101 E.g., J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892).
102 312 U.S. 126 (1941).
103 See 18 U.S.C. §§ 3771 , 3772 (criminal procedure); 28 U.S.C. Sec. 2072 (civil procedure); id., Sec. 2076 (evidence). In Davis v. United States, 411 U.S. 233, 241 (1973), the Court referred in passing to the supersession of statutes without evincing any doubts about the validity of the results. When Congress amended the Rules Enabling Acts in the 100th Congress, P.L. 100–702, 102 Stat. 4642, 4648 , amending 28 U.S.C. Sec. 2072 , the House would have altered supersession, the Senate disagreed, the House acquiesced, and the old provision remained. See H.R. 4807, H.Rept.No. 100–889, 100th Cong., 2d sess. (1988), 27–29; 134 Cong Rec. 23573–23584 (1988); Id., 31051–31052 (Sen. Heflin); Id., 31872 (Rep. Kastenmeier).
104 E.g., A Symposium on Administrative Law: Part I – Delegation of Powers to Administrative Agencies, 36Amer. U. L. Rev.295 (1987); Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83Mich. L. Rev.1223 (1985); Aranson, Gellhorn & Robinson, A Theory of Legislative Delegation, 68Corn. L. Rev.1 (1982).
105 American Textile Mfgrs. Inst. v. Donovan, 452 U.S. 490, 543 (1981) (Chief Justice Burger dissenting); Industrial Union Dept. v. American Petroleum Inst., 448 U.S. 607, 671 (1980) (then–Justice Rehnquist concurring). See also United States v. Midwest Video Corp., 406 U.S. 649, 675, 677 (1972) (Chief Justice Burger concurring, Justice Douglas dissenting); Arizona v. California, 373 U.S. 546, 625–626 (1963) (Justice Harlan dissenting in part). Occasionally, statutes are narrowly construed, purportedly to avoid constitutional problems with delegations. E.g., Industrial Union Dept., supra, 645–646 (plurality opinion); National Cable Television Assn. v. United States, 415 U.S. 336, 342 (1974).
106 E.g., Mistretta v. United States, 488 U.S. 361, 371–379 (1989). See also Skinner v. Mid–America Pipeline Co., 490 U.S. 212, 220– 224 (1989); Touby v. United States, 500 U.S. 160, 164–168 (1991). While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, supra, 415–416, conceded both the inevitability of delegations and the inability of the courts to police them.

Supplement: [P. 82, add to n.106:]

Notice Clinton v. City of New York, 524 U.S. 417 (1998) , in which the Court struck down what Congress had intended to be a delegation to the President, finding that the authority conferred on the President was legislative power, not executive power, which failed because the Presentment Clause had not and could not have been complied with. The dissenting Justices argued that the law, the Line Item Veto Act, was properly treated as a delegation and was clearly constitutional. Id. at 453 (Justice Scalia concurring in part and dissenting in part), 469 (Justice Breyer dissenting).

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