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ArtI.S1.4.4 Contingent Delegations and Nondelegation Doctrine

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Supreme Court has held that Congress may delegate authority or legislative action contigent on fact-finding or actions by the Executive Branch.1 In the 1813 case, Cargo of Brig Aurora v. United States, the Court upheld the revival of a law upon the issuance of a presidential proclamation.2 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 that violated the neutral commerce of the United States.3 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.” 4

Similarly, in Marshall Field & Co. v. Clark, the Supreme Court upheld the delegation to the President to suspend the import of specific commodities under Tariff Act of 1890 as constitutional.5 The Act directed the President to suspend the import of the 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 that “he may deem to be reciprocally unequal and unjust.” 6 In sustaining this statute, the Court relied 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,” 7 and (2) that the Act

does 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.8

By similar reasoning, the Supreme Court sustained the flexible provisions of the Tariff Act of 1922 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.9

See generally Gundy v. United States, No. 17-6086, slip op. at 26 (U.S. June 20, 2019) (Gorsuch, J., dissenting) ( “[Congress] may always authorize Executive Branch officials to fill in even a large number of details, to find facts that trigger the generally applicable rule of conduct specified in a statute, or to exercise non-legislative powers.” ). back
11 U.S. (7 Cr.) 382 (1813). back
Id. back
Id. at 388. back
143 U. S. 649 (1892). back
Id. at 680. back
Id. at 691. back
Id. at 692, 693. back
J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). back