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ArtI.S1.4.1 Overview of Delegations of Legislative Power

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.

By vesting Congress with “[a]ll legislative Powers,” the Supreme Court has viewed the Legislative Vesting Clause as limiting the authority Congress can delegate to other branches of government or private entities. In general, the Court has held that “the legislative power of Congress cannot be delegated.” 1 In 1935, Chief Justice Charles Evans Hughes, on behalf of the Court, declared that “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” 2 This principle is the basis of the nondelegation doctrine that serves as an important, though seldom used, limit on who may exercise legislative power and the extent to which legislative power may be delegated. In its 2022 decision in West Virginia v. Environmental Protection Agency, the Supreme Court provided further clarity on the nondelegation doctrine, emphasizing that a decision of “magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” 3

United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). See also Gundy v. United States, No. 17-6086, slip op. at 1 (U.S. June 20, 2019) (plurality opinion) ( “The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government.” ); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) ( “[The] text in [Article I, Section I of the Constitution] permits no delegation of those powers.” ); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) ( “[I]n carrying out [the] constitutional division into three branches[,] 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.” ); Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892) ( “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” ); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825) ( “It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative.” ). back
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935). back
No. 20-1530, slip op. at 31 (U.S. June 30, 2022). back