The History of the Doctrine of Nondelegability

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ArtI.S1.1.1 The History of the Doctrine of Nondelegability

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 sometimes declared categorically that “the legislative power of Congress cannot be delegated,” 1 and on other occasions has recognized more forthrightly, as Chief Justice Marshall did in 1825, that, although Congress may not delegate powers that “are strictly and exclusively legislative,” it may delegate “powers which [it] may rightfully exercise itself.” 2 The categorical statement has never been literally true, the Court having upheld the delegation at issue in the very case in which the statement was made.3 The Court has long recognized that administration of the law requires exercise of discretion,4 and 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.” 5 The real issue is where to draw the line. Chief Justice Marshall recognized “that there is some difficulty in discerning the exact limits,” and that “the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.” 6 Accordingly, the Court’s solution has been to reject delegation challenges in all but the most extreme cases, and to accept delegations of vast powers to the President or to administrative agencies.

With the exception of a brief period in the 1930s when the Court was striking down New Deal legislation on a variety of grounds, the Court has consistently upheld grants of authority that have been challenged as invalid delegations of legislative power.

The modern doctrine may be traced to the 1928 case, J. W. Hampton, Jr. & Co. v. United States, in which the Court, speaking through Chief Justice Taft, upheld Congress’s delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries.7 Although formally invoking 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.8 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.9

As characterized by the Court, the delegations struck down in 1935 in Panama Refining10 and Schechter11 were not only broad but unprecedented. Both cases involved provisions of the National Industrial Recovery Act. At issue in Panama Refining was a delegation to the President of authority to prohibit interstate transportation of what was known as “hot oil” —oil produced in excess of quotas set by state law. The problem was that the Act provided no guidance to the President in determining whether or when to exercise this authority, and required no finding by the President as a condition of exercise of the authority. Congress “declared no policy, . . . established no standard, [and] laid down no rule,” but rather “left the matter to the President without standard or rule, to be dealt with as he pleased.” 12 At issue in Schechter was a delegation to the President of authority to promulgate codes of fair competition that could be drawn up by industry groups or prescribed by the President on his own initiative. The codes were required to implement the policies of the Act, but those policies were so general as to be nothing more than an endorsement of whatever might be thought to promote the recovery and expansion of the particular trade or industry. The President’s authority to approve, condition, or adopt codes on his own initiative was similarly devoid of meaningful standards, and “virtually unfettered.” 13 This broad delegation was “without precedent.” The Act supplied “no standards” for any trade or industry group, and, unlike other broad delegations that had been upheld, did not set policies that could be implemented by an administrative agency required to follow “appropriate administrative procedure.” “Instead of prescribing rules of conduct, [the Act] authorize[d] the making of codes to prescribe them.” 14

Since 1935, the Court has not struck down a delegation to an administrative agency.15 Rather, the Court has approved, “without deviation, Congress’s ability to delegate power under broad standards.” 16 The Court has upheld, for example, delegations to administrative agencies to determine “excessive profits” during wartime,17 to determine “unfair and inequitable distribution of voting power” among securities holders,18 to fix “fair and equitable” commodities prices,19 to determine “just and reasonable” rates,20 and to regulate broadcast licensing as the “public interest, convenience, or necessity require.” 21 During all this time the Court “has not seen fit . . . to enlarge in the slightest [the] relatively narrow holdings” of Panama Refining and Schechter.22 Again and again, the Court has distinguished the two cases, sometimes by finding adequate standards in the challenged statute,23 sometimes by contrasting the vast scope of the power delegated by the National Industrial Recovery Act,24 and sometimes by pointing to required administrative findings and procedures that were absent in the NIRA.25 The Court has also relied on the constitutional doubt principle of statutory construction to narrow interpretations of statutes that, interpreted broadly, might have presented delegation issues.26

In more recent years, however, the modern application of the J. W. Hampton Court’s intelligible principle test and the broad deference it affords congressional delegations of authority to the other branches has met with growing skepticism from some members of the Court.27 (Gorsuch, J., concurring) (noting “thoughtful” commentary questioning whether the current intelligible principle test serves “as much as a protection against the delegation of legislative authority as a license for it, undermining the separation between the legislative and executive powers that the founders thought essential” ). The 2019 case of Gundy v. United States highlighted an emerging split on the High Court with respect its nondelegation doctrine jurisprudence.28 In that case, a criminal defendant challenged a provision of the Sex Offender Registration and Notification Act (SORNA) allowing the Attorney General to (1) “specify the applicability” of SORNA’s registration requirements to individuals convicted of a sex offense prior to the statute’s enactment and (2) “prescribe rules for [their] registration” in jurisdictions where the offender resides, works, or is a student.29 ; see also Gundy, slip op. at 2 (plurality opinion) (discussing SORNA’s “basic registration scheme” ). Writing for a four-Justice plurality, Justice Kagan interpreted this provision as limiting the Attorney General’s authority to “require pre-Act offenders to register as soon as feasible,” 30 concluding that the delegation “easily passe[d] constitutional muster.” 31 For the plurality, the Attorney General’s authority under SORNA, when compared to other delegations the Court had previously upheld, was “distinctly small-bore.” 32 Notably, Justice Kagan’s opinion was met by a dissent, authored by Justice Gorsuch and joined by Chief Justice Roberts and Justice Thomas, which argued that the statute unconstitutionally provided the Attorney General “unfettered discretion.” 33 Further, the dissenters claimed that the modern intelligible principle test has “no basis in the original meaning of the Constitution” or in historical practice.34 In response, the plurality, noting that delegations akin to the one in SORNA are “ubiquitous in the U.S. Code,” argued that as a matter of pragmatism the Court should afford deference to Congress’s judgments that such broad delegations are necessary.35 Providing the fifth vote to affirm the petitioner’s conviction was Justice Alito, who, while agreeing that the plurality correctly applied the modern nondelegation case law, indicated he would “support [the] effort” of the dissenting Justices to reconsider the intelligible principle test once a majority of the Court concurred in rethinking the doctrine.36 Accordingly, Gundy witnessed the Court evenly split on how deferential the Court should be with regard to congressional delegations to the other branches, raising questions as to whether the nondelegation doctrine would remain moribund.

United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). See also Field v. Clark, 143 U.S. 649, 692 (1892). back
Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 41 (1825). back
The Court in Shreveport Grain & Elevator upheld a delegation of authority to the FDA to allow reasonable variations, tolerances, and exemptions from misbranding prohibitions that were backed by criminal penalties. It was “not open to reasonable dispute” that such a delegation was permissible to fill in details “impracticable for Congress to prescribe.” back
J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928) ( “In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination” ). back
Mistretta v. United States, 488 U.S. 361, 372 (1989). See also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) ( “Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility” ). back
Wayman v. Southard, 23 U.S. (10 Wheat.) at 42. For particularly useful discussions of delegations, see 1 K. Davis, Administrative Law Treatise Ch. 3 (2d ed., 1978); L. Jaffe, Judicial Control of Administrative Action ch. 2 (1965). back
276 U.S. 394 (1928). back
276 U.S. at 406. back
276 U.S. at 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). back
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). back
A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). back
293 U.S. at 430, 418, respectively. Similarly, the executive order exercising the authority contained no finding or other explanation by which the legality of the action could be tested. Id. at 431–33. back
295 U.S. at 542. back
295 U.S. at 541. Other concerns were that the industrial codes were backed by criminal sanction, and that regulatory power was delegated to private individuals. See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989). back
A year later, the Court invalidated the Bituminous Coal Conservation Act on delegation grounds, but that delegation was to private entities. Carter v. Carter Coal Co., 298 U.S. 238 (1936). back
Mistretta v. United States, 488 U.S. 361, 373 (1989). back
Lichter v. United States, 334 U.S. 742 (1948). back
American Power & Light Co. v. SEC, 329 U.S. 90 (1946). back
Yakus v. United States, 321 U.S. 414 (1944). back
FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944). back
National Broadcasting Co. v. United States, 319 U.S. 190 (1943). back
Hampton v. Mow Sun Wong, 426 U.S. 88, 122 (1976) (Justice Rehnquist, dissenting). back
Mistretta v. United States, 488 U.S. 361, 373–79 (1989). back
See, e.g., Fahey v. Mallonee, 332 U.S. 245, 250 (1947) (contrasting the delegation to deal with “unprecedented economic problems of varied industries” with the delegation of authority to deal with problems of the banking industry, where there was “accumulated experience” derived from long regulation and close supervision); Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474 (2001) (the NIRA “conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition’” ). back
See, e.g., Yakus v. United States, 321 U.S. 414, 424–25 (1944) (Schechter involved delegation “not to a public official . . . but to private individuals” ; it suffices if Congress has sufficiently marked the field within which an administrator may act “so it may be known whether he has kept within it in compliance with the legislative will.” ) back
See, e.g., Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 645–46 (1980) (plurality opinion) (invalidating an occupational safety and health regulation, and observing that the statute should not be interpreted to authorize enforcement of a standard that is not based on an “understandable” quantification of risk); National Cable Television Ass'n v. United States, 415 U.S. 336, 342 (1974) ( “hurdles revealed in [Schechter and J. W. Hampton, Jr. & Co. v. United States] lead us to read the Act narrowly to avoid constitutional problems” ). back
See, e.g., Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. ___, No. 13-1080, slip op. at 12 (2015) (Thomas, J., concurring) (arguing that the Court should “return to the original understanding of the federal legislative power” and reject the “boundless standard the ‘intelligible principle’ test has become” ); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1154 (10th Cir. 2016) (Gorsuch, J., concurring) (noting “thoughtful” commentary questioning whether the current intelligible principle test serves “as much as a protection against the delegation of legislative authority as a license for it, undermining the separation between the legislative and executive powers that the founders thought essential” ). back
See 588 U.S. ___, No. 17-6086, slip op. (2019). While criticisms of the intelligible principle doctrine have become more pronounced in recent years, some former members of the Court had argued for striking down legislation on nondelegation grounds. See, e.g., Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 675 (1980) (Rehnquist, J., concurring); Arizona v. California, 373 U.S. 546, 626–27 (1963) (Harlan, J., dissenting). back
34 U.S.C. § 20913(d); see also Gundy, slip op. at 2 (plurality opinion) (discussing SORNA’s “basic registration scheme” ). back
See Gundy, slip op. at 16 (plurality opinion). back
Id. at 1. back
Id. at 17. back
Id. at 24 (Gorsuch, J., dissenting). back
Id. at 17 (Gorsuch, J., dissenting). back
Id. at 17–18 (plurality opinion). back
Id. at 1 (Alito, J., concurring). Justice Kavanaugh took no part in the consideration or decision in Gundy, as he was appointed to the Supreme Court after oral argument occurred in the case. back

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