Delegation and Individual Liberties.

Some Justices have argued that delegations by Congress of power to affect the exercise of “fundamental freedoms” by citizens must be closely scrutinized to require the exercise of a congressional judgment about meaningful standards.181 The only pronouncement in a majority opinion, however, is that, even with regard to the regulation of liberty, the standards of the delegation “must be adequate to pass scrutiny by the accepted tests.”182 The standard practice of the Court has been to interpret the delegation narrowly so as to avoid constitutional problems.183

Perhaps refining the delegation doctrine, at least in cases where Fifth Amendment due process interests are implicated, the Court held that a government agency charged with the efficient administration of the executive branch could not assert the broader interests that Congress or the President might have in barring lawfully resident aliens from government employment. The agency could assert only those interests Congress charged it with promoting, and if the action could be justified by other interests, the office with responsibility for promoting those interests must take the action.184


United States v. Robel, 389 U.S. 258, 269 (1967) (Justice Brennan concurring). The view was specifically rejected by Justices White and Harlan in dissent, id. at 288–89, and ignored by the majority. back
Kent v. Dulles, 357 U.S. 116, 129 (1958). back
Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith, 390 U.S. 17 (1968); Greene v. McElroy, 360 U.S. 474, 506–08 (1959) (Court will not follow traditional principles of congressional acquiescence in administrative interpretation to infer a delegation of authority to impose an industrial security clearance program that lacks the safeguards of due process). More recently, the Court has eschewed even this limited mode of construction. Haig v. Agee, 453 U.S. 280 (1981). back
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (5-to-4 decision). The regulation was reissued by the President, E. O. 11935, 3 C.F.R. 146 (1976), reprinted in 5 U.S.C. § 3301 (app.), and sustained in Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978). back