The History of the Doctrine of Nondelegability

The Supreme Court has sometimes declared categorically that “the legislative power of Congress cannot be delegated,”51 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.”52 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.53 The Court has long recognized that administration of the law requires exercise of discretion,54 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.”55 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.”56 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.57 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.58 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.59

As characterized by the Court, the delegations struck down in 1935 in Panama Refining60 and Schechter61 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.”62 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.”63 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.”64

Since 1935, the Court has not struck down a delegation to an administrative agency.65 Rather, the Court has approved, “without deviation, Congress’s ability to delegate power under broad standards.”66 The Court has upheld, for example, delegations to administrative agencies to determine “excessive profits” during wartime,67 to determine “unfair and inequitable distribution of voting power” among securities holders,68 to fix “fair and equitable” commodities prices,69 to determine “just and reasonable” rates,70 and to regulate broadcast licensing as the “public interest, convenience, or necessity require.”71 During all this time the Court “has not seen fit . . . to enlarge in the slightest [the] relatively narrow holdings” of Panama Refining and Schechter.72 Again and again, the Court has distinguished the two cases, sometimes by finding adequate standards in the challenged statute,73 sometimes by contrasting the vast scope of the power delegated by the National Industrial Recovery Act,

74 and sometimes by pointing to required administrative findings and procedures that were absent in the NIRA.75 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.76

Concerns in the scholarly literature with respect to the scope of the delegation doctrine77 have been reflected in the opinions of some of the Justices.78 Nonetheless, the Court’s decisions continue to approve very broad delegations,79 and the practice will likely remain settled.

The fact that the Court has gone so long without holding a statute to be an invalid delegation does not mean that the nondelegation doctrine is a dead letter. The long list of rejected challenges does suggest, however, that the doctrine applies only to standard-less delegations of the most sweeping nature.


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
E.g., A Symposium on Administrative Law: Part I—Delegation of Powers to Administrative Agencies, 36 AMER. U. L. REV. 295 (1987); Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223 (1985); Aranson, Gellhorn & Robinson, A Theory of Legislative Delegation, 68 CORN. L. REV. 1 (1982). back
American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 543 (1981) (Chief Justice Burger dissenting); Industrial Union Dep’t 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, 625–26 (1963) (Justice Harlan dissenting in part). Occasionally, statutes are narrowly construed, purportedly to avoid constitutional problems with delegations. E.g., Industrial Union Dep’t , 448 U.S. at 645–46 (plurality opinion); National Cable Television Ass’n v. United States, 415 U.S. 336, 342 (1974). back
E.g., Mistretta v. United States, 488 U.S. 361, 371–79 (1989). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220–24 (1989); Touby v. United States, 500 U.S. 160, 164–68 (1991); Whitman v. American Trucking Ass’ns, 531 U.S. 547 (2001). While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, 488 U.S. at 415–16, conceded both the inevitability of delegations and the inability of the courts to police them. Notice Clinton v. City of New York, 524 U.S. 417 (1998), in which the Court struck down the Line Item Veto Act, intended by Congress 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 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). back