Article I, Section 1 — Legislative Vesting Clause

ArtI.S1.1 Overview of Legislative Vesting Clause

The Legislative Vesting Clause of the Constitution grants specific and limited legislative powers¹ to a bicameral Congress of the United States, which is composed of a House of Representatives and Senate.² As such, the Legislative Vesting Clause and the coordinate Executive and Judicial Vesting Clauses delineate the powers the Framers accorded the U.S. Government’s Legislative, Executive, and Judicial Branches.

Historical sources from the decades leading up to the ratification of the Constitution suggest that the Legislative Vesting Clause would have been understood to: (1) limit the powers of Congress to those expressly granted in the nation’s founding document; (2) diffuse legislative power by creating a legislature with two chambers; and (3) limit the extent to which the other branches of government could exercise legislative power.³ Although documents authored by, known to, or relied upon by the Founders support these three interrelated purposes of the Legislative Vesting Clause, scholars continue to debate whether the Framers or others alive at the time of the Founding would have understood the Clause to prohibit Congress from empowering the other branches of government or private entities to govern private conduct.⁴

ArtI.S1.2.1 Origin of Limits on Federal Power

The Legislative Vesting Clause begins by providing that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”¹ The decision of the Framers of the Constitution to limit Congress’s powers to those “herein granted”—or, in other words, those specifically enumerated in the Constitution—reflects their experience as colonists living under the rule of the powerful British Parliament of the 1700s. The English jurist William Blackstone, writing only two decades before the American Revolution, described the British Parliament as possessing wide-ranging powers to enact legislation affecting each individual’s life, liberty, and property² that no other governmental authority could effectively amend or repeal.³ Although the British King could give his assent to laws, exercise some limited legislative powers in making treaties, and enforce the laws, the King could not make law without Parliament.⁴ As a result, only Parliament had the power to undo or change the laws it had made, leaving the British people either to petition Parliament for changes to undesirable laws or take the extreme step of overthrowing their government.⁵

The Framers rejected this form of “parliamentary supremacy,” believing that a national legislature should not exercise the “absolute despotic power”⁶ of government without limitation.⁷ Indeed, scholars have noted that some of the major grievances prompting the American Revolution concerned various Acts of the British Parliament that violated the colonists’ rights (e.g., the right to trial by jury), which “were guaranteed specifically to the colonists by means of colonial charters.”⁸ Consequently, to preserve individual liberty, the Framers specifically limited the federal legislative power to those powers expressly mentioned in the Constitution and the power to “make all Laws which shall be necessary and proper” to carry out the Federal Government’s limited powers.⁹ As James Wilson argued during the Pennsylvania ratification convention, “to control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states.”¹⁰

The Legislative Vesting Clause and the other text of Article I thus served as an ostensible limitation on Congress’s legislative power. Nonetheless in the post-Convention debates over ratification of the Constitution, Anti-Federalists raised concerns that these textual limitations would fail to prevent Congress from growing too powerful.¹¹ In an effort to assuage these concerns, Alexander Hamilton, who supported ratification of the Constitution, argued that the courts could enforce the Constitution’s limitations on Congress’s powers by declaring a legislative act in excess of such powers to be void.¹² And indeed, less than two decades after the ratification of the Constitution, the Supreme Court asserted its authority to review the constitutionality of legislative acts, and to declare void those provisions of legislation that violated the Constitution, in a case or controversy properly before the Court.¹³ Thus, the Legislative Vesting Clause of the U.S. Constitution reflects a departure from the British legal tradition of “parliamentary supremacy” because it provided external limitations on the power of Congress.

ArtI.S1.2.2 Origin of a Bicameral Congress

The Framers of the Constitution aimed to limit Congress’s power further by specifying in the Legislative Vesting Clause that Congress would be a bicameral institution composed of a House of Representatives and Senate. Although Congress’s bicameral structure was a departure from the unicameral legislature comprised of state delegations under the Articles of Confederation,¹ the Framers had significant experience with bicameral legislatures. Under British rule, colonists were subject to law enacted by the bicameral Parliament of Great Britain, where the hereditary aristocracy was represented in the House of Lords and the freeholders of the land were represented in the House of Commons.² Further, many of the Framers of the Constitution were governed by their bicameral state legislatures. Following the Declaration of Independence in 1776, all the states but Georgia, Pennsylvania, and Vermont established bicameral legislatures.³

The Constitutional Convention⁴ was assembled in 1787, in part, to restructure the national unicameral legislature and to address the “defects” of the Articles of Confederation.⁵ Congress, under the Articles, had no direct means to implement or compel compliance with its laws.⁶ For example, Congress lacked the power to levy duties, to tax individuals directly, and to regulate interstate commerce.⁷ The Articles, recognizing the states’ “sovereignty, freedom, and independence,” retained for the states all powers not expressly delegated to Congress.⁸ As a result, Congress, among other things, was unable to stop states from adopting “discriminatory and retaliatory” trade practices among the states.⁹

However, in seeking to strengthen federal legislative power over states and individuals, the Framers were also concerned that a single legislative body with unchecked and concentrated power would threaten individual liberties.¹⁰ James Wilson, representing Pennsylvania at the Convention, cautioned that “[i]f the Legislative authority be not restrained, there can be no liberty nor stability.”¹¹ In supporting a bicameral Congress, he remarked that legislative power “can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue [and] good sense of those who compose it.”¹²

In debating the new structure of Congress, the Convention considered several proposals.¹³ Much of the debate focused on two proposals—the Virginia Plan and the New Jersey Plan.¹⁴ Virginia Governor Edmund Randolph presented the Virginia Plan that proposed three separate branches of government—legislative, executive, and judicial.¹⁵ The Legislative Branch under the Virginia Plan would consist of a bicameral body in which each state would have a different number of representatives based on the state’s population.¹⁶ In addition, the Virginia Plan allowed Congress to exercise legislative authority over individuals, removing the constraint under the Articles that the state legislatures act as intermediaries to implement enacted legislation.¹⁷ The Virginia Plan was principally favored by the larger states that embraced the notion that the view of the majority of the Nation’s population should prevail in the national legislature.¹⁸

As an alternative to the Virginia Plan, William Paterson proposed the New Jersey Plan to the Convention.¹⁹ In following the unicameral structure provided under the Articles of Confederation, Paterson’s proposal represented an effort to revise the current Articles rather than replace them.²⁰ The proposed structure of Congress under the New Jersey Plan provided for a unicameral legislature with a voting system that allowed for one vote per state in the national legislature.²¹ Under this proposed system, Congress would require the “consent” of the state legislatures before exercising legislative authority directly upon individuals.²² Smaller states generally supported the New Jersey Plan because they did not favor a major departure from the Articles or proportional representation in Congress based on state size.²³

ArtI.S1.2.3 The Great Compromise of the Constitutional Convention

Although the states generally favored a bicameral legislature,¹ the states were heavily divided over the representation in each branch of Congress.² To resolve these concerns, the Convention delegates approved forming a “compromise committee” to devise a compromise among the proposed plans for Congress.³ The committee proposed a plan that became known as the Great Compromise.⁴ The plan provided for a bicameral legislature with proportional representation based on a state’s population for one chamber and equal state representation in the other.⁵ For the House of Representatives, the plan proposed that each state would have “one representative for every 40,000 inhabitants,” elected by the people.⁶ For the Senate, the committee proposed that each state would have an equal vote with members elected by the individual state legislatures.⁷ After significant debate, the Convention adopted the Great Compromise on July 16, 1787.⁸

During the state ratification debates that followed the Convention, one of the central objections from the Anti-Federalists was that the consolidation of government power in a national Congress could “destroy” state legislative power.⁹ The Federalists attempted to curb these fears by noting that the sovereign power of the Nation resides in the people, and the Constitution merely “distribute[s] one portion of power” to the state and “another proportion to the government of the United States.”¹⁰ To further allay Anti-Federalist concerns regarding concentrated federal power in Congress, the Federalists emphasized that bicameralism, which lodged legislative power directly in the state governments through equal representation in the Senate, would serve to restrain, separate, and check federal power.¹¹

In vesting the legislative power in a bicameral Congress, the Framers of the Constitution purposefully divided and dispersed that power between two chambers—the House of Representatives with representation based on a state’s population and the Senate with equal state representation.¹² The Framers recognized that the division of legislative power between two distinct chambers of elected members was needed “to protect liberty” and address the states’ fear of an imbalance of power in Congress.¹³ As later explained by Chief Justice Warren Burger, “the Great Compromise, under which one House was viewed as representing the people and the other the states, allayed the fears of both the large and small states.”¹⁴

By diffusing legislative power between two chambers of Congress in the legislative Vesting Clause, the Framers of the Constitution sought to promote the separation of powers, federalism, and individual rights.¹⁵ They designed the bicameral Congress so that “legislative power would be exercised only after opportunity for full study and debate in separate settings.”¹⁶ While acknowledging that the bicameral legislative process often produces conflict, inefficiency, and “in some instances [can] be injurious as well as beneficial,” the Framers believed that the intricate law-making process promotes open discussion and safeguards against “against improper acts of legislation.”¹⁷ As the Supreme Court later explained, the “legislative steps outlined in Art. I are not empty formalities” but serve to “make certain that there is an opportunity for deliberation and debate.”¹⁸

ArtI.S1.2.4 Legislative Power and the Executive and Judicial Branches

A third purpose of the Framers for the Legislative Vesting Clause was to limit the extent to which the other two branches of government could exercise legislative power. The Framers crafted the Legislative Vesting Clause against the historical backdrop of English legal tradition that viewed, in the words of William Blackstone, a “tyrannical government” as one in which “the right of both making and of enforcing the laws, is vested in one and the same man, or one and the same body of men.”¹ For Blackstone, “wherever these two powers are united together, there can be no public liberty.”² And James Madison, echoing Blackstone and other prominent thinkers of the time, wrote in the Federalist Papers of the “necessary partition of power among the several departments, as laid down in the Constitution.”³ In Madison’s view, the concentration of distinct forms of government power in the same entity would lead to tyranny as when a single entity had the power to both prescribe and enforce the law.⁴ To separate these powers, the Framers, in the first three Articles of the Constitution, vested the legislative powers in a Congress;⁵ the executive power in a President;⁶ and the judicial power of the United States “in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”⁷

Although the Framers had concerns about the other two branches aggrandizing themselves at the expense of the Legislative Branch, they were unable to articulate a bright-line rule for identifying when such violations of the separation of powers principle had occurred. Indeed, Madison referred to the “separate and distinct exercise of the different powers of government” as “to a certain extent . . . admitted on all hands to be essential to the preservation of liberty.”⁸ But he acknowledged the difficulty in distinguishing the legislative power from the judicial or executive power in some instances.⁹ Further, in contrast to some state constitutional provisions in existence at the time of the Founding,¹⁰ the text of the Constitution does not specifically prohibit the Executive or Judicial Branches from exercising legislative power.¹¹

Indeed, while the Framers of the Constitution saw great importance in allocating the legislative power to a Congress, the design of the Constitution contemplates some overlap in the branches’ performance of government functions.¹² Madison explained that even the influential French political philosopher Baron de Montesquieu, who once wrote that there could be “no liberty where the legislative and executive powers are united in the same person,” would have found it permissible for the functions of government to be shared, to some extent, among the branches.¹³ And Madison acknowledged that contemporaneous state constitutional provisions requiring a strict separation of powers were perhaps aspirational because, in practice, the branches of state governments sometimes shared such functions, as when a state senate served as a judicial tribunal for trying impeachments of executive or judicial officers.¹⁴ Thus, the Framers may not have understood the Legislative Vesting Clause as prohibiting the executive and Judicial Branches from performing functions that overlapped with those performed by Congress, so long as they were not purely legislative in nature.

Although the Founders wanted to prevent the Executive Branch and judiciary from aggrandizing their power by usurping the legislative role, it is unclear whether the Legislative Vesting Clause would have been understood to prohibit Congress from giving away its power to the other two branches. The text of the Constitution is silent with respect to the extent to which Congress is prohibited from delegating its legislative power to the Executive Branch, courts, or a private entity.¹⁵ The Framers debated the necessity of having a more express constitutional provision on separation of powers, but these debates did not lead to explicit limits on legislative delegations. For example, in the Convention debates, James Madison made a motion to give the national Executive the power to “execute such other powers (‘not Legislative nor ‘Judiciary’ in their nature’) as may from time to time be delegated by the National Legislature.”¹⁶ The motion was defeated, with Charles Pinckney arguing that the language was “unnecessary, the object of [the language] being included in the ‘power to carry into effect the national laws.’”¹⁷

The debates over who could exercise the legislative power continued into the First Congress. Following ratification of the Constitution, James Madison also introduced an amendment to the Constitution in the House of Representatives of the First United States Congress that would have provided that the powers “delegated by this Constitution to the Government of the United States, shall be exercised as therein appropriated, so that the Legislative shall not exercise the powers vested in the Executive or the Judicial; nor the Executive the power vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.”¹⁸ Although James Madison argued that the amendment would help to resolve doubts about how the Constitution should be construed, Representative Roger Sherman opposed the amendment as “unnecessary” because the Constitution already vested the legislative, executive, and judicial powers in three separate branches.¹⁹ Although the House adopted the amendment, the Senate later rejected it without elaboration.²⁰ Furthermore, the founding generation during the First Congress broadly authorized the President to perform tasks that required the Executive Branch to fill ambiguities and gaps in the statutory scheme created by the legislature. One oft-cited example is a 1789 Act of the First Congress that provided pensions to wounded and disabled Revolutionary War Veterans for one year “under such regulations as the President of the United States may direct.”²¹ Nonetheless, the Framers did not appear to endorse wholesale delegations of the legislative power to the Executive Branch, and the import of the actions of the First Congress has been the subject of debate among legal historians.²²

ArtI.S1.3.1 Separation of Powers and Checks and Balances

The Legislative Vesting Clause, along with the coordinate Executive and Judicial Vesting Clauses, delineate the powers the Framers accorded to the National Government’s Legislative, Executive, and Judicial Branches. Separating the powers to legislate, to execute, and to adjudicate into separate government departments was a familiar concept to the Framers. As noted by James Madison in the Federalist No. 47, political theorist Baron Charles de Montesquieu had written about the separation of powers concept almost 100 years earlier.¹ Consequently, when the colonies separated from Great Britain following the American Revolution, the framers of the new state constitutions generally embraced the principle of separation of powers in their charters.² The framers of the new state constitutions, however, did not necessarily incorporate systems of checks and balances. Accordingly, violations of the separation of powers doctrine by state legislatures were commonplace prior to the convening of the Constitutional Convention.³ Theory as much as experience guided the Framers in the summer of 1787.⁴

In drafting the Constitution, the Framers considered how to order a system of government that provided sufficient power to govern while protecting the liberties of the governed.⁵ The doctrine of separation of powers, which the Framers implemented in drafting the Constitution, was based on several generally held principles: the separation of government into three branches: legislative, executive, and judicial; the concept that each branch performs unique and identifiable functions that are appropriate to each branch; and the proscription against any person or group serving in more than one branch simultaneously.⁶

While the Constitution largely effectuated these principles, the Framers’ separation of power was not rigid, but incorporated a system of checks and balances whereby one branch could check the powers assigned to another. For example, the Constitution allows the President to veto legislation,⁷ but requires the President to gain the Senate’s consent to appoint executive officers and judges or enter into treaties.⁸ Some critics of the proposed Constitution objected to what they regarded as a curious mixture of government functions and powers.⁹ In response to criticism that the Constitution blurred the powers accorded to the three branches of government, James Madison wrote a series of essays addressing this issue.¹⁰

In the Federalist No. 47, Madison relied on the theories of Baron de Montesquieu in addressing critics of the new Constitution.¹¹ According to Madison, Montesquieu and other political theorists “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other,” but rather liberty was endangered “where the whole power of one department is exercised by the same hands which possess the whole power of another department.”¹² Madison further reasoned that neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient to protect liberty.¹³ Instead, to secure liberty from concentrated power, Madison argued, “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”¹⁴ Thus, James Madison famously stated: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”¹⁵

To achieve the principles articulated by Madison in the Federalist No. 47, the Constitution features many “checks and balances.” For example, bicameralism reduces legislative predominance,¹⁶ while the presidential veto gives the President a means of defending his priorities and preventing congressional overreach.¹⁷ The Senate’s role in appointments and treaties provides a check on the President.¹⁸ The courts are assured independence from the political branches through good-behavior tenure and security of compensations,¹⁹ and, through judicial review, the courts check the other two branches.²⁰ The impeachment power gives Congress authority to root out corruption and abuse of power in the other two branches.²¹

ArtI.S1.3.2 Functional and Formalist Approaches to Separation of Powers

Throughout the Nation’s history, questions have arisen on how to apply the separation of powers doctrine. Since 1976, the Supreme Court has curtailed congressional discretion to structure the National Government when the Court has deemed such discretion to violate the separation of powers.¹ For example, in Bowsher v. Synar, the Court found unconstitutional a congressional scheme to provide for a relatively automatic deficit-reduction process pursuant to the Balanced Budget and Emergency Deficit Control Act of 1985 (Gramm-Rudman-Hollings Act)² because the Act required the critical involvement of an officer with significant legislative ties.³ In Immigration & Naturalization Service v. Chadha, moreover, the Court found Congress’s use of legislative vetoes unconstitutional on separation of powers grounds.⁴ And in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., the Court held that Congress vesting broad judicial powers to handle bankruptcy cases in officers not possessing security of tenure and salary violated separation of powers principles.⁵ The Court, however, sustained Congress’s establishment of a process by which independent special prosecutors could investigate and prosecute cases of alleged corruption in the Executive Branch in Morrison v. Olson.⁶

In ruling on separation of powers questions, the Supreme Court has used two different approaches: formalist and functionalist. The Court’s stricter formalist approach emphasizes the need to maintain three distinct branches of government by drawing bright lines among branches to reflect differences in legislating, executing, and adjudicating.⁷ In contrast, the Court’s functional approach emphasizes each branch’s core functions and asks whether the challenged action threatens the essential attributes of the legislative, executive, or judicial function or functions.⁸ Under this approach, the Court’s rulings have provided flexibility to the branch if there is little risk that the challenged action will impair a core function. If there is a significant risk that the action will impair a branch’s core function, courts will consider whether there is a compelling reason for the action.⁹

In Immigration & Naturalization Service v. Chadha, the Supreme Court used the formalist approach to invalidate Congress’s legislative veto by which it could set aside an Attorney General determination to suspend deportation of an alien pursuant to a delegation of power from Congress.¹⁰ Central to Chadha were two conceptual premises. First, the action Congress had taken was legislative because it had the purpose and effect of altering the legal rights, duties, and relations of persons outside the Legislative Branch, and thus Congress had to comply with the Constitution’s bicameralism and presentment requirements.¹¹ Second, the Attorney General was performing an executive function in implementing the congressional delegation, and the legislative veto was an impermissible interference in the law’s execution. Congress could act only by legislating to change its delegation’s terms.¹²

Subsequently, in Bowsher v. Synar, the Court held that Congress could not vest even part of a law’s execution in the Comptroller General because the Comptroller General was an officer who was subject to removal by Congress. Allowing Congress to vest execution of the laws in the Comptroller General would enable Congress to play a role in executing the laws because Congress could remove the Comptroller General if Congress was dissatisfied with how the Comptroller General was implementing its authority.¹³ The Court noted that Congress could act only by passing laws.¹⁴

On the same day that the Court decided Bowsher through a seemingly formalist analysis, the Court appeared to use the less strict, functional approach in Commodity Futures Trading Commission (CFTC) v. Schor to resolve a challenge to a regulatory agency’s power to adjudicate a state common law issue—the type of issue that the Court, in a formalist plurality opinion with a more limited concurrence, had denied to a non-Article III bankruptcy court in Northern Pipeline.¹⁵ Sustaining the CFTC’s power, the Court emphasized “the principle that ‘practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.’”¹⁶ The Court held that, in evaluating such a separation of powers challenge, the Court had to consider the extent to which the “essential attributes of judicial power” were reserved to Article III courts and the extent to which the non-Article III entity exercised the jurisdiction and powers normally vested only in Article III courts; the origin and importance of the rights to be adjudicated; and the concerns that drove Congress to depart from Article III’s requirements.¹⁷ The Court distinguished Schor from Bowsher stating “[u]nlike Bowsher, this case [Schor] raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.”¹⁸ The test the Court used was a balancing one—whether Congress had impermissibly undermined the role of another branch without appreciable expansion of its own power.

While the Court has exercised some flexibility in using a formalist or functionalist analysis in separation of powers cases, it has generally applied a formalist approach when the Constitution clearly commits a function or duty to a particular branch and a functionalist approach when the constitutional text is indeterminate, thereby requiring the Court to assess the likelihood that a branch’s essential power would be impaired. For example, in Morrison v. Olson, the Court used a functionalist analysis to sustain Congress’s creation of an independent counsel.¹⁹ The independent-counsel statute, Title VI of the Ethics in Government Act,²⁰ the Court emphasized, did “not involve an attempt by Congress to increase its own power at the expense of the Executive Branch” nor did it constitute a “judicial usurpation” of executive power.²¹ Moreover, the Court stated, the law did not “impermissibly undermine” Executive Branch powers, nor did it “disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.”²² The Court also acknowledged that the statute undeniably reduced executive control over what the Court had previously identified as a core executive function—executing laws through criminal prosecution—through its appointment provisions and its assurance of independence by limiting removal to a “good cause” standard.²³ The Court noted the circumscribed nature of the reduction, the discretion of the Attorney General to initiate appointment, the limited jurisdiction of the counsel, and the power of the Attorney General to ensure that the laws are faithfully executed by the counsel.²⁴ This balancing, the Court concluded, left the President with sufficient control to ensure his ability to perform his constitutionally assigned functions.²⁵

Similarly, in Mistretta v. United States, the Court used a functionalist analysis when it upheld the constitutionality of the U.S. Sentencing Commission.²⁶ Through the Sentencing Reform Act of 1984, Congress created the Sentencing Commission as an independent entity in the Judicial Branch to promulgate sentencing guidelines binding on federal judges when sentencing convicted offenders. Under the Act, the President appoints all seven Sentencing Commission members, three of whom have to be Article III judges, and he could remove any member for cause. Noting that the Court’s separation of powers jurisprudence is always animated by concerns over encroachment and aggrandizement, the Supreme Court stated: “we have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.”²⁷ Thus, with regard to the discrete questions—the placement of the Commission, the appointment of the members, especially the service of federal judges, and the removal power—the Court carefully analyzed whether one branch had been given power it could not exercise, or had enlarged its powers impermissibly, and whether any branch would have its institutional integrity threatened by the structural arrangement.²⁸

Notwithstanding Morrison and Mistretta, the Supreme Court continued to apply a formalist analysis in separation of powers cases. For instance, in its 1991 decision in Metropolitan Washington Airports Authority v. Citizens for the Abatement of Airport Noise,²⁹ the Supreme Court applied a formalistic analysis, although the case appeared to involved a factual situation that could be resolved under Morrison and Mistretta’s concern over Congress aggrandizing its powers. In Granfinanciera, S.A. v. Nordberg,³⁰ the Court reasserted the fundamental holding of Northern Pipeline in a bankruptcy context, although the issue was the right to a jury trial under the Seventh Amendment rather than strictly a separation of powers question. And in Freytag v. Commissioner,³¹ the Court pursued a straightforward Appointments Clause analysis, informed by a separation of powers analysis, but not governed by it. Finally, in Public Citizen v. U.S. Department of Justice,³² Justice Anthony Kennedy, in a concurring opinion, would have followed the formalist approach, but explicitly grounded his concurrence in the distinction between an express constitutional vesting of power and implicit vesting of power.

The Supreme Court has also considered the separation of powers in standing cases. For instance, in Allen v. Wright,³³ the Court viewed the standing requirement for access to judicial review as reflecting a separation of powers component—confining the courts to their proper sphere. In Lujan v. Defenders of Wildlife,³⁴ moreover, the Court imported the Take-Care Clause, obligating the President to see to the faithful execution of the laws, into the standing analysis, creating a substantial barrier to congressional decisions to provide for judicial review of executive actions.

ArtI.S1.3.3 Enumerated, Implied, Resulting, and Inherent Powers

The Supreme Court has recognized four general categories of powers belonging to the National Government—enumerated, implied, resulting, and inherent. Enumerated powers are those specifically identified in the Constitution.¹ In McCulloch v. Maryland, Chief Justice John Marshall recognized that the Constitution expressly provides the National Government with specific enumerated powers,² stating:

This government is acknowledged by all to be one of enumerated powers. The principle,

that it can exercise only the powers granted to it, would seem too apparent, to have

required to be enforced by all those arguments which its enlightened friends, while it

was depending before the people, found it necessary to urge. That principle is now

universally admitted.³

Article I, Section 8, of the Constitution lists various powers that the States ceded to the National Government. These powers include the power to tax and spend, to borrow, and to regulate commerce. Article I, Section 8, however, is not an exclusive list of powers the Constitution expressly grants to the National Government or its constituent branches. For instance, Congress also has power to regulate the electoral process under Article I, Section 4,⁴ and the President has the power to veto legislation under Article I, Section 7.⁵

Implied powers are those powers necessary to effectuate powers enumerated in the Constitution.⁶ In other words, the Constitution’s enumeration of powers implies an additional grant of such powers that are necessary to effectuate them. In McCulloch v. Maryland, Chief Justice Marshall declared that the power conferred by the Necessary and Proper Clause⁷ embraces all legislative “means which are appropriate” to carry out the powers provided expressly by the Constitution.⁸ Chief Justice Marshall stated: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”⁹ In his Commentaries on the Constitution of the United States, Justice Joseph Story discussed implied powers, noting that any analysis of whether a power is constitutional must first begin by determining whether the Constitution expressly provides for the power.¹⁰ If the Constitution does not expressly state (or enumerate) the power, the question then becomes if such a power is necessary to implement a power provided expressly by the Constitution.¹¹

Chief Justice Marshall identified resulting powers as those “result[ing] from the whole mass of the powers of the National Government and from the nature of political society.”¹² In American Ins. Co. v. Canter, Chief Justice Marshall recognized that “the constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.”¹³ From the power to acquire territory, Chief Justice Marshall reasoned, arises the right to govern it.¹⁴ In the Legal Tender Cases (Knox v. Lee), the Supreme Court clarified that the Constitution neither expressly grants resulting powers to Congress nor are they ancillary to an unenumerated power.¹⁵

A fourth category of power identified by the Supreme Court—inherent powers¹⁶—appears to share some of the same characteristics of resulting powers. In United States v. Curtiss-Wright Export Corp., Justice George Sutherland described inherent powers as those that are independent of an authorizing power but are inherent to the government in its role as sovereign.¹⁷ Justice Sutherland emphasized that enumerated and implied powers pertain to those the States ceded to the National Government when the United States was formed,¹⁸ while inherent powers originated in the external sovereignty that Great Britain passed to the United States at the end of the American Revolution. Justice Sutherland wrote:

[S]ince the states severally never possessed international powers, such powers could

not have been carved from the mass of state powers but . . . were transmitted to the

United States from some other source. . . . When . . . the external sovereignty of

Great Britain in respect of the colonies ceased, it immediately passed to the

Union. . . . The powers to declare and wage war, to conclude peace, to make treaties, to

maintain diplomatic relations with other sovereignties, if they had never been

mentioned in the Constitution, would have vested in the Federal Government as

necessary concomitants of nationality.¹⁹

Justice Sutherland emphasized the difference between domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter “virtually free of any restraint.”²⁰

Notwithstanding the doctrine of enumerated powers—the power to legislate by the “rights expressly given and duties expressly enjoined” by the Constitution²¹—the Court has ascribed implied, resulting, and inherent powers to the National Government. Consequently, the United States, among other things, has power to impart to paper currency the quality of legal tender to pay debts;²² to acquire territory by discovery;²³ to legislate for Indian tribes wherever situated in the United States;²⁴ to exclude and deport aliens²⁵ and to require that those who are admitted be registered and fingerprinted;²⁶ and the powers of sovereignty to conduct foreign relations.²⁷

ArtI.S1.3.4 Bicameralism

Although the Continental Congress consisted of a unicameral house, the Framers adopted a bicameral legislature for the U.S. Government at the Constitutional Convention. In making this decision, historical and then-recent experience informed the Framers’ decision. For example, some of the ancient republics, which the Framers used as models, had two-house legislatures,¹ and the Parliament of Great Britain was based in two social orders, the hereditary aristocracy represented in the House of Lords and the freeholders of the land represented in the House of Commons.²

By providing a national legislature comprised of two Houses, the Framers further reinforced the separation of powers. The Great Compromise, one of the critical decisions leading to the Convention’s successful completion, provided for a House of Representatives apportioned on population, and a Senate in which the states were equally represented. Bicameralism thus enabled a composite National and Federal Government, but it also provided for a further separation and diffusion of powers. The legislative power, the Framers recognized, should be predominant in a society dependent upon the suffrage of the people. However, it was important that legislative power be subject to checks unless transient majorities abuse their powers. Hence, the Framers provided that both Houses of Congress—their Members beholden to different constituencies—deliberate on and agree to new legislation.³

During the North Carolina Ratifying Convention, future Supreme Court Justice James Iredell articulated the importance of a bicameral legislature for diffusing factional power, stating:

[I]t was the general sense of all America . . . that the legislative body should be divided

into two branches, in order that the people might have a double security. It will often

happen that, in a single body, a bare majority will carry exceptionable and pernicious

measures. The violent faction of a party may often form such a majority in a single

body, and by that means the particular views or interests of a part of the community

may be consulted, and those of the rest neglected or injured. . . . If a measure be right,

which has been approved of by one branch, the other will probably confirm it; if it be

wrong, it is fortunate that there is another branch to oppose or amend it.⁴

Events since 1787 have altered both the separation of powers and the federalism bases of bicameralism through adoption of the Seventeenth Amendment, which resulted in the popular election of the Senate. Consequently, the differences between the House of Representatives and the Senate are less pronounced than they were at the Nation’s inception.

ArtI.S1.4.1 Overview of Delegations of Legislative Power

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

ArtI.S1.4.2 Historical Background on Delegating Legislative Power

The extent to which Congress can delegate its legislative powers has been informed by two distinct constitutional principles: separation of powers and due process. A rigid application of separation of powers would prevent the lawmaking branch from divesting itself of any of its power and conferring it on one of the other branches. But the doctrine is not so rigidly applied as to prevent conferral of significant authority on the Executive Branch.¹ In J. W. Hampton, Jr. & Co. v. United States,² Chief Justice William Howard Taft discussed the ability of Congress to delegate power, stating:

The Federal Constitution . . . divide[s] the governmental power into three

branches. . . . [I]n carrying out that 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. This is not to say

that the three branches are not co-ordinate parts of one government and that each in

the field of its duties may not invoke the action of the two other branches in so far as

the action invoked shall not be an assumption of the constitutional field of action of

another branch. In determining what it 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 governmental co-ordination.³

In Loving v. United States,⁴ the Court distinguished between its usual separation of powers doctrine—emphasizing arrogation of power by a branch and impairment of another branch’s ability to carry out its functions—and the delegation doctrine, “another branch of our separation of powers jurisdiction,” which is informed not by the arrogation and impairment analyses but solely by the provision of standards.⁵ This confirmed what had long been evident—that the delegation doctrine is unmoored to traditional separation of powers principles.

The second principle underlying delegation law is a due process conception that undergirds delegations to administrative agencies. The Court has contrasted the delegation of authority to a public agency, which typically is required to follow established procedures in building a public record to explain its decisions and to enable a reviewing court to determine whether the agency has stayed within its ambit and complied with the legislative mandate, with delegations to private entities, which typically are not required to adhere to such procedural safeguards.⁶

Two theories suggested themselves to the early Court to justify the results of sustaining delegations. The Chief Justice alluded to the first in Wayman v. Southard.⁷ He distinguished between “important” subjects, “which must be entirely regulated by the legislature itself,” and subjects “of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.” While his distinction may be lost, the theory of the power “to fill up the details” remains current. A second theory, formulated even earlier, is that Congress may legislate contingently, leaving to others the task of ascertaining the facts that bring its declared policy into operation.⁸

ArtI.S1.4.3 Delegating Legislative Power to Fill Up the Details

In finding a power to “fill up the details,” the Court in Wayman v. Southard¹ rejected the contention that Congress had unconstitutionally delegated power to the federal courts to establish rules of practice.² Chief Justice John Marshall agreed that the rulemaking power was a legislative function and that Congress could have formulated the rules itself, but he denied that the delegation was impermissible. Since then, of course, Congress has authorized the Supreme Court to prescribe rules of procedure for the lower federal courts.³

Congress has long provided for the Executive and Judicial Branches to fill up the details of statutes. For example, the Court upheld a statute requiring the manufacturers of oleomargarine to have their packages “marked, stamped and branded as the Commissioner of Internal Revenue . . . shall prescribe,” rejecting a contention that the prosecution was not for violation of law but for violation of a regulation.⁴ “The criminal offence,” said Chief Justice Melville Fuller, “is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail.”⁵ Kollock was not the first such case,⁶ and it was followed by a multitude of delegations that the Court sustained. In one such case, for example, the Court upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States.⁷

ArtI.S1.4.4 Contingent Delegations and Nondelegation Doctrine

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

ArtI.S1.5.1 Overview of Nondelegation Doctrine

The nondelegation doctrine is rooted in certain separation of powers principles.¹ In limiting Congress’s power to delegate, the nondelegation doctrine exists primarily to prevent Congress from ceding its legislative power to other entities not vested with legislative authority under the Constitution. As interpreted by the Court, the doctrine seeks to ensure that legislative decisions are made through a bicameral legislative process by the elected Members of Congress or governmental officials subject to constitutional accountability.² Reserving the legislative power for a bicameral Congress was “intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps.”³

The nondelegation doctrine, however, does not require complete separation of the three branches of government, and its continuing strength is the question of much debate.⁴ In its nondelegation jurisprudence, the Supreme Court has recognized the need and importance of coordination among the three branches of government so long as one branch does not encroach on the “constitutional field” of another branch.⁵ The nondelegation doctrine seeks to distinguish the constitutional delegations of power to other branches of government that may be “necessary” for governmental coordination from unconstitutional grants of legislative power that may violate separation of powers principles.⁶

ArtI.S1.5.2 Historical Background on Nondelegation Doctrine

While the Supreme Court has declared categorically that “the legislative power of Congress cannot be delegated,”¹ and on other occasions has recognized more forthrightly, as Chief Justice John 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.

During the nineteenth and early twentieth centuries, the nondelegation doctrine developed slowly, partly due to the relatively few statutes that were enacted and the lack of executive agencies to exercise those delegations.⁷ In early nondelegation cases, the Supreme Court upheld various delegations of authority to the President, administrative agencies, and the judiciary.⁸ For example, in Wayman v. Southard, the Court upheld the Process Acts of 1789, which authorized the federal courts to issue writs to execute their judgments.⁹ In Wayman, the Court declared that “Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.”¹⁰ His opinion distinguished between “important” policy issues, “which must be entirely regulated by the legislature itself,” and subjects “of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.”¹¹ Later, in Marshall Field & Co. v. Clark,¹² the Court affirmed Congress’s grant of power to the President to impose import tariffs only if the President determined that other nations imposed “unequal or unreasonable” tariffs on American exports.¹³ The Court reasoned that Congress must “make the law, which necessarily involves a discretion as to what it shall be,” and its delegations may only “confer[ ] authority and discretion as to its execution, to be exercised under and in pursuance of the law.”¹⁴

While acknowledging the Congress may delegate some authority in these early decisions, the Supreme Court began to clarify the role of the delegee with respect to Congress and draw the boundary between permissible and impermissible delegations. In these early nondelegation cases, the Court determined that governmental entities acted as a “mere agent” to administer and effectuate the laws and “essential”¹⁵ policy decisions Congress enacted and were not exercising legislative power.¹⁶ To ensure the delegations were not boundless, the Court also required that the delegations of authority must stay “within the great outlines marked out by the legislature.”¹⁷

ArtI.S1.5.3 Origin of Intelligible Principle Standard

As the primary means to enforce the nondelegation doctrine, the Supreme Court has required that Congress lays out an “intelligible principle” to govern and guide its delegee.¹ The “intelligible principle” standard requires that Congress delineate a legal framework to constrain the authority of the delegee, such as an administrative agency.² The principle was explicitly set forth in the 1928 case, J. W. Hampton, Jr. & Co. v. United States, in which the Supreme Court upheld Congress’s delegation of authority to the President to set tariff rates that would equalize production costs in the United States and competing countries.³ The Court’s opinion, written by Chief Justice William Howard Taft, emphasized that Congress was restrained only according to “common sense and the inherent necessities” of governmental cooperation in seeking the assistance of another branch.⁴ The Court explained that Congress could delegate discretion to other entities to “secure the exact effect” of legislation if it provides an “intelligible principle” to which the President or other entity must conform.⁵ The Court further noted: “Such legislative action is not a forbidden delegation of legislative power” if “nothing involving the expediency or just operation of such legislation was left to [delegee’s] determination.”⁶ The Court concluded that, with respect to the tariff law at issue in the case, the President acted only as “the mere agent of the law-making department” because the President was guided by an “intelligible principle” laid out by Congress.⁷ Hence, the “intelligible principle” standard, as imposed by the Supreme Court, seeks to ensure that Congress has laid down the “boundaries” and limits of Congress’s delegations.⁸

In 1929, the year after the J.W. Hampton decision, the stock market crashed, precipitating the Great Depression of the 1930s.⁹ After his election in 1932,¹⁰ President Franklin Delano Roosevelt, in conjunction with Congress, began to implement his “New Deal”¹¹ of economic and labor reforms that greatly expanded the power of the Federal Government during his presidency.¹² The expansion of governmental power to combat the Great Depression and spur economic recovery during the New Deal era¹³ led to several judicial challenges that, among other issues, questioned the scope of Congress’s authority to delegate broad power to the Executive Branch under the nondelegation doctrine.

In 1935, in the midst of the New Deal era, the Supreme Court struck down legislation that granted the President extensive and “unfettered” powers to regulate economic activity. As characterized by the Court, the delegations to the President challenged in Panama Refining Co. v. Ryan¹⁴ and A.L.A. Schechter Poultry Corp. v. United States¹⁵ were not only broad but unprecedented delegation of legislative power to the President. 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 petroleum produced in excess of quotas set by state law.¹⁶ The Supreme Court held that the Act provided no guidance to the President in determining whether or when to exercise this authority, requiring no finding by the President as a condition before exercising the authority.¹⁷ As the Court noted, Congress “declared no policy, . . . established no standard, [and] laid down no rule” with respect to the so-called “hot oil” law at issue, but rather “left the matter to the President without standard or rule, to be dealt with as he pleased,” resulting in the law’s invalidation.¹⁸

Similarly, the Supreme Court in Schechter Poultry reviewed a delegation to the President of authority to promulgate codes of fair competition that industry groups or the President, on his own initiative, could propose and adopt.¹⁹ The Court determined that the codes were required to implement the National Industrial Recovery Act, but the President’s authority to approve, condition, or adopt codes on his own initiative was similarly devoid of meaningful standards and “virtually unfettered.”²⁰ The Court noted that this broad delegation was “without precedent.”²¹ The Act supplied “no standards” for any trade or industry association for proposing codes and, unlike other broad delegations that the Court had upheld, did not set policies that an administrative agency could implement by following “appropriate administrative procedure.”²² The Court rejected the government’s argument that such economic measures must take into consideration the “grave national crisis” caused by the Great Depression, stating that “[e]xtraordinary conditions do not create or enlarge constitutional power.”²³

The Supreme Court’s decisions in Panama Refining and Schechter Poultry represent the “high-water mark” for the nondelegation doctrine.²⁴ A decline of judicial reliance on the nondelegation doctrine soon followed in the years after the Court issued its decisions in Panama Refining and Schechter.²⁵ This shift in the Court’s approach to the nondelegation doctrine coincided with a broader “constitutional revolution” at the Supreme Court that largely affirmed the Federal Government’s broad powers to guide the nation’s social and economic development.²⁶ With respect to the nondelegation doctrine, the Court’s use of the “intelligible principle” standard afforded the Executive Branch “substantial discretion” over regulatory policy.²⁷ As noted by legal scholars, “the federal judiciary [took] a hands-off approach to assessing the congressional assignment of policy responsibility to other government officials.”²⁸

Under the “intelligible principle” standard, the Court has not struck down legislation as an impermissible delegation of authority to other branches of government since its Panama Refining and Schechter decisions in 1935. Since 1935, the Court has not struck down a delegation to an administrative agency.²⁹ Rather, the Court has approved, “without deviation, Congress’s ability to delegate power under broad standards.”³⁰ The Court has upheld, for example, delegations to administrative agencies to determine “excessive profits” during wartime,³¹ to determine “unfair and inequitable distribution of voting power” among securities holders,³² to fix “fair and equitable” commodities prices,³³ to determine “just and reasonable” rates,³⁴ and to regulate broadcast licensing as the “public interest, convenience, or necessity require.”³⁵ During all this time the Court “has not seen fit . . . to enlarge in the slightest [the] relatively narrow holdings” of Panama Refining and Schechter.³⁶ Again and again, the Court has distinguished the two cases, sometimes by finding adequate standards in the challenged statute,³⁷ sometimes by contrasting the vast scope of the power delegated by the National Industrial Recovery Act (NIRA),³⁸ and sometimes by pointing to required administrative findings and procedures that were absent in the NIRA.³⁹ 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.⁴⁰

ArtI.S1.5.4 Nature and Scope of Intelligible Principle Standard

The “intelligible principle” standard remains the Supreme Court’s primary test for assessing whether Congress has unconstitutionally delegated its legislative power to the other branches of the government. Under this lenient standard, the Supreme Court has repeatedly affirmed, “without deviation, Congress’s ability to delegate power under broad standards” to governmental entities.¹ As the Court has explained, “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.”² Under the “intelligible principle” standard, the Court has upheld, for example, delegations to administrative agencies to determine “excessive profits” during wartime;³ “unfair and inequitable distribution of voting power” among securities holders;⁴ what are “fair and equitable” commodities prices;⁵ and “just and reasonable” rates that a natural gas company could charge.⁶ In perhaps the broadest delegation judicially challenged, the Court in National Broadcasting Co. v. United States, upheld a provision in the Communications Act of 1934 that authorized the Federal Communications Commission to regulate broadcast licensing as the “public interest, convenience, or necessity require.”⁷

With the rise of the modern administrative state, the Supreme Court did not impose many restrictions on Congress’s ability to delegate power to governmental entities. In embracing a pragmatic view of its role, the Court has been reluctant to interfere with Congress’s “practical” need and flexibility to delegate and rely on the duties and expertise of the other branches of the government.⁸ The Court noted that its “jurisprudence has been driven by a practical understanding” about “our increasingly complex society, replete with ever changing and more technical problems.”⁹ The Court has often explained that Congress lacks the technical expertise, resources, time, foresight, and the flexibility to address every detail of its policy decisions.¹⁰ Even when holding the delegation unconstitutional in Panama Refining and Schechter, the Court affirmed that the “Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality.”¹¹ In this vein, the Court has declared that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.”¹² Denying Congress the power to delegate, the Court noted, would “‘stop . . . the wheels of government’ and bring about confusion, if not paralysis, in the conduct of the public business.”¹³ As a result, the Supreme Court has often acknowledged that the practical need for coordination among the three branches of government does not violate separation of powers principles that underpin the nondelegation doctrine.¹⁴

The Supreme Court’s application of the “intelligible principle” standard may also reflect the challenge in determining the appropriate line between permissible and impermissible delegations.¹⁵ Since its early nondelegation decisions, the Court has recognized the difficulty in drawing the “line which separates legislative power to make laws, from administrative authority” to execute the laws enacted by Congress.¹⁶ The “precise boundary of this [legislative] power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.”¹⁷

Rather than characterize the delegated power as legislative or administrative, the Court has looked to how the intelligible principles laid out by Congress constrain delegations to governmental entities. As explained in Yakus v. United States,

the only concern of courts is to ascertain whether the will of Congress has been obeyed.

This depends not upon the breadth of the definition of the facts or conditions which the

administrative officer is to find but upon the determination whether the definition

sufficiently marks the field within which the [delegee] is to act so that it may be known

whether he has kept within it in compliance with the legislative will.¹⁸

In Yakus, the Court upheld the delegation of authority to the Price Administrator to fix commodity prices that “will be generally fair and equitable and will effectuate the purposes” of the statute.¹⁹ The Court determined that standards in the statute were “sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator, in fixing the designated prices, has conformed to those standards.”²⁰ Only the absence of standards or boundaries for the delegated authority, the Court reasoned, would justify “overriding” Congress’s choice to effectuate its “legislative will.”²¹

This focus on statutory boundaries rather than the legislative character of the delegation is seen in the Supreme Court’s review of delegations of rulemaking authority.²² While acknowledging that regulations are “binding rules of conduct,”²³ the Court has treated such regulations as “valid only as subordinate rules when found to be within the framework of the policy which the legislature has sufficiently defined.”²⁴

The extent to which Congress must constrain its policy judgments or explicitly define the scope of a delegee’s discretion may depend on whether the delegee possesses inherent authority related to the delegated matter. For delegated matters that are within the expertise or independent authority of the delegee, the Supreme Court has not required that Congress provide detailed guidance or direction for the delegation.²⁵ For example, in Loving v. United States, the Court reviewed a challenge to Congress’s delegation to the President of the authority to prescribe aggravating factors for military capital murder cases.²⁶ The Court reasoned that “[o]nce delegated that power by Congress, the President, acting in his constitutional office of Commander in Chief, had undoubted competency to prescribe those factors without further guidance.”²⁷ The Court, however, cautioned that if the delegation called for “the exercise of judgment or discretion that lies beyond the traditional authority of the President,” there may be a greater need to provide guiding principles to sustain the delegation.²⁸

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.²⁹ The 2019 case of Gundy v. United States highlighted an emerging split on the High Court with respect its nondelegation doctrine jurisprudence.³⁰ 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.³¹ Writing for a four-Justice plurality, Justice Elena Kagan interpreted this provision as limiting the Attorney General’s authority to “require pre-Act offenders to register as soon as feasible,”³² concluding that the delegation “easily passe[d] constitutional muster.”³³ For the plurality, the Attorney General’s authority under SORNA, when compared to other delegations the Court had previously upheld, was “distinctly small-bore.”³⁴

Notably, Justice Kagan’s opinion was met by a dissent, authored by Justice Neil Gorsuch and joined by Chief Justice John Roberts and Justice Clarence Thomas, which argued that the statute unconstitutionally provided the Attorney General “unfettered discretion.”³⁵ Further, the dissenters claimed that the modern intelligible principle test has “no basis in the original meaning of the Constitution” or in historical practice.³⁶ 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.³⁷ Providing the fifth vote to affirm the petitioner’s conviction was Justice Samuel 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.³⁸ 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.

ArtI.S1.5.5 Agency Discretion and Chevron Deference

Challenges to delegations of legislative power often raise concerns regarding an administrative agency’s discretion to interpret broad directives, ambiguities, or gaps in a statutory provision. An agency’s degree of discretion that may be constitutionally “acceptable” under the nondelegation doctrine appears to be fairly broad. In Whitman v. American Trucking Associations, the Supreme Court rejected a challenge to the U.S. Environmental Protection Agency’s (EPA’s) authority to set national air quality standards at a level “‘requisite’ . . . to protect the public health.”¹ The Court held that the “scope of discretion” given to the EPA under the Clean Air Act “fit[s] comfortably” and is “well within the outer limits of our nondelegation precedents.”² In reviewing previous nondelegation cases, the Court reasoned that even in “sweeping regulatory schemes” that affect the entire economy, the Court has “never demanded . . . that statutes provide a ‘determinate criterion’ for saying ‘how much [of the regulated harm] is too much.’”³

Congress has given considerable leeway to administrative agencies to interpret statutory ambiguities, which has been sustained by the Supreme Court under the Chevron doctrine. Under the Chevron doctrine, courts give special consideration or deference to administrative agencies to interpret statutory ambiguities within their delegated authorities.⁴ Judicial review of such interpretations is governed by the framework set forth in Chevron U.S.A. Inc., v. Natural Resources Defense Council.⁵ The Chevron case reviewed the EPA’s definition of the term “stationary source” in a regulation promulgated under the Clean Air Act.⁶ A unanimous Supreme Court upheld that regulation, determining that the EPA’s definition was “a permissible construction of the statute.”⁷ In Chevron, the Court reasoned that

If Congress has explicitly left a gap for the agency to fill, there is an express delegation

of authority to the agency to elucidate a specific provision of the statute by

regulation. . . . Sometimes the legislative delegation to an agency on a particular

question is implicit rather than explicit. In such a case, a court may not substitute its

own construction of a statutory provision for a reasonable interpretation made by the

administrator of an agency.⁸

The broad deference the “intelligible principle” standard affords congressional delegations of authority to the other branches has met with growing skepticism from some members of the Court.⁹ The 2019 case of Gundy v. United States highlighted an emerging split on the High Court with respect its nondelegation doctrine jurisprudence.¹⁰ In that case, a criminal defendant challenged a provision of the Sex Offender Registration and Notification Act (SORNA) allowing, among other things, the Attorney General to “specify the applicability” of SORNA’s registration requirements to individuals convicted of a sex offense prior to the statute’s enactment.¹¹ Writing for a four-Justice plurality, Justice Elena Kagan interpreted this provision as limiting the Attorney General’s authority to “require pre-Act offenders to register as soon as feasible,”¹² concluding that the delegation “easily passe[d] constitutional muster.”¹³ For the plurality, the Attorney General’s authority under SORNA, when compared to other delegations the Court had previously upheld, was “distinctly small-bore.”¹⁴

Notably, Justice Kagan’s opinion was met by a dissent, authored by Justice Neil Gorsuch and joined by Chief John Justice Roberts and Justice Clarence Thomas, which argued that the statute unconstitutionally provided the Attorney General “unfettered discretion.”¹⁵ Further, the dissenters claimed that the modern intelligible principle standard has “no basis in the original meaning of the Constitution” or in historical practice.¹⁶ 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.¹⁷ Providing the fifth vote to affirm the petitioner’s conviction was Justice Samuel 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.¹⁸ Accordingly, the Court in Gundy was 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.¹⁹

ArtI.S1.5.6 Major Questions Doctrine and Canons of Statutory Construction

Some legal scholars have suggested that delegations to governmental entities are interpreted through other “canons” of statutory construction and principles of statutory interpretation.¹ These canons and principles have helped the Court to define the constitutionally acceptable degree of discretion, deference, or direction given by Congress to a delegee.

These complementary canons and principles have restricted the powers delegated by Congress, indirectly enforcing the separation of powers principles of the nondelegation doctrine. For example, the Supreme Court has sometimes limited the scope of an agency’s delegated authority (and Chevron deference²) under the so-called “major questions” doctrine.³ Under this doctrine, the Court has vacated administrative regulations on the ground that “Congress could not have intended to delegate a decision of such economic and political significance to an agency” without a clear statement of its intention.⁴

For matters that “affect the entire national economy” or go beyond the “traditional authority” of the delegee, Congress, in the Court’s opinion, must provide “substantial guidance.”⁵ This additional level of guidance appears to be a more stringent version of the “intelligible principle” standard that has been used by the Court for delegation challenges. In West Virginia v. Environmental Protection Agency, the Supreme Court expressed doubt that Congress intended to provide the Environmental Protection Agency with authority to cap carbon dioxide emissions so as to “force a nationwide transition” from fossil fuel-generated electricity.⁶ The Court stated: “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme . . . . A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”⁷ Similarly, in King v. Burwell,⁸ the Court considered whether states participating in a federal health care exchange were eligible for tax credits under the Patient Protection and Affordable Care Act.⁹ The Court declined to apply the Chevron deference to the statutory interpretation of the Internal Revenue Service (IRS), holding that this was an “‘extraordinary case’” in which the Court had “‘reason to hesitate before concluding that Congress’” implicitly delegated to the IRS the authority to “‘fill in the statutory gaps.’”¹⁰

The Supreme Court has also enforced nondelegation principles through the canon of constitutional avoidance, taking a narrow view of a statutory delegation in order to avoid potential constitutional conflicts with the nondelegation doctrine.¹¹ In a 1974 case, National Cable Television Association v. United States, the Court avoided potential delegation concerns in a challenge to the Federal Communications Commission’s (FCC’s) authority to assess fees against regulated parties to cover their operating costs.¹² The Independent Offices Appropriations Act directed federal agencies to set fee levels by taking into consideration “direct and indirect cost[s] to the Government, value to the recipient, [and] public policy.”¹³ Relying on Schechter Poultry and J.W. Hampton, the Court declined to read the statute as raising a constitutional delegation question of whether the Act delegated taxing authority to the FCC, determining that “the [delegation] hurdles revealed in those decisions lead us to read the Act narrowly to avoid constitutional problems.”¹⁴ The Court narrowly construed the statute to limit the FCC’s authority to set fees that reflect only the “value to the recipient” and not the full costs of regulating.¹⁵ While the Supreme Court later distanced itself from the reasoning of National Cable Television in Skinner v. Mid-America Pipeline Company, explaining that “the delegation of discretionary authority under Congress’s taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges,”¹⁶ the 1974 decision illustrates that the nondelegation doctrine may not be “dead” but continues to survive through judicial canons and principles that sustain the separation of powers roots of the doctrine.¹⁷

ArtI.S1.6.1 Criminal Statutes and Nondelegation Doctrine

The Supreme Court has held that only Congress has the power to declare any act or omission a criminal offense.¹ This limit derives from the due process and separation of powers principles that no one should be “subjected to a penalty unless the words of the statute plainly impose it.”² The Supreme Court has held that Congress must “distinctly” define by statute what violations of the statute’s provisions constitute a criminal offense.³ At the same time, the Court has recognized that Congress may provide that violation of valid administrative regulations authorized by a statute shall be punished as a crime.⁴

Once Congress has exercised its power to declare certain acts criminal, the Supreme Court has generally upheld Congress’s authority to delegate authority to further define what specific conduct is criminal pursuant to the statutory limits.⁵ For example, the Supreme Court, in Touby v. United States, upheld a delegation of authority to the Attorney General to classify drugs as “controlled substances” under the Controlled Substances Act.⁶ The Act prohibits, among other things, any person from knowingly or intentionally manufacturing, distributing a “controlled substance,” and sets forth criminal penalties that vary according to the level of a drug’s classification.⁷ While acknowledged that its “cases are not entirely clear as to whether more specific guidance [than an ‘intelligible principle’] is in fact required” for delegations that trigger statutorily prescribed criminal penalties, the Court concluded that the Act “passes muster even if greater congressional specificity is required in the criminal context.”⁸ The Court determined that the Act “placed multiple specific restrictions on the Attorney General’s discretion to define criminal conduct,” satisfying the “constitutional requirements of the nondelegation doctrine.”⁹

The Supreme Court has also upheld the authority delegated to the Attorney General to apply criminal penalties retroactively. The 2019 case of Gundy v. United States centered on the application of registration requirements under the Sex Offender Registration and Notification Act (SORNA) to pre-act offenders.¹⁰ Section 20913(d) of SORNA authorizes the Attorney General to “specify the applicability” of the registration requirements “to sex offenders convicted before the enactment” of the Act and to “prescribe rules for the registration of any such sex offenders” and for other offenders unable to comply with the initial registration requirements.¹¹ In his petition to the Supreme Court, Gundy, a convicted sex offender, argued, among other things, that SORNA’s grant of “undirected discretion” to the Attorney General to decide whether to apply the statute to pre-SORNA offenders is an unconstitutional delegation of legislative power to the Executive Branch.

In a plurality opinion written on behalf of four Justices, Justice Elena Kagan concluded that SORNA’s delegation “easily passes constitutional muster” and was “distinctly small-bore” when compared to the other broad delegations the Court has upheld since 1935.¹² Justice Kagan read SORNA as requiring the Attorney General to “apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment.”¹³ Although the delegation in Section 20913(d) does not refer to a feasibility standard, Justice Kagan relied on the legislative history, definition of “sex offender,” and SORNA’s stated purpose (i.e., to establish a “comprehensive” registration system) as an “appropriate guide” to limit the Attorney General’s discretion.¹⁴ The plurality concluded that the Attorney General’s “temporary authority” to delay the application of SORNA’s registration requirements to pre-act offenders due to feasibility concerns “falls well within constitutional bounds.”¹⁵ Providing the fifth vote to affirm Gundy’s conviction, Justice Samuel Alito concurred in the judgment only, declining to join Justice Kagan’s opinion and indicating his willingness to rethink the Supreme Court’s approach to the nondelegation doctrine.¹⁶

In his dissent joined by Chief Justice John Roberts and Justice Clarence Thomas, Justice Neil Gorsuch viewed the plain text of the delegation as providing the Attorney General limitless and “vast” discretion and “free rein” to impose (or not) selected registration requirements on pre-act offenders.¹⁷ Justice Gorsuch concluded that SORNA’s delegation was an unconstitutional breach of the separation between the legislative and Executive Branches.¹⁸ In “a future case with a full panel,” Justice Gorsuch hoped that the Court would recognize that “while Congress can enlist considerable assistance from the Executive Branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code. That ‘is delegation running riot.’”¹⁹

Congress may also delegate authority to prescribe maximum and minimum penalty ranges for criminal sentences. The Court in Mistretta v. United States upheld Congress’s conferral of “significant discretion” on the U.S. Sentencing Commission, an independent agency in the Judicial Branch, to develop and promulgate sentencing guidelines for federal judges.²⁰ These guidelines restricted a judge’s discretion in sentencing criminal defendants by establishing a range of determinate sentences for all categories of federal offenses and defendants.²¹

The Court concluded that the statute “sets forth more than merely an ‘intelligible principle’ or minimal standards” by “explain[ing] what the Commission should do and how it should do it, and set[ting] out specific directives to govern particular situations.”²² Although Congress provided standards regarding the developing of the sentencing guidelines, the Court noted that the Commission has significant discretion in making policy judgments when considering the relative severity of different crimes and the weight of the characteristics of offenders, and stated that delegations may carry with them “the need to exercise judgment on matters of policy.”²³ The Court also noted that the statute did not confer authority to create new crimes or to enact a federal death penalty for any offense.²⁴

The Court has confessed that its “cases are not entirely clear as to whether more specific guidance is in fact required” for delegations relating to the imposition of criminal sanctions.²⁵ It is clear, however, that some essence of the power to define crimes and set a range of punishments is not delegable, but must be exercised by Congress. This conclusion derives in part from the time-honored principle that penal statutes are to be strictly construed, and that no one should be “subjected to a penalty unless the words of the statute plainly impose it.”²⁶ Both Schechter²⁷ and Panama Refining²⁸—the only two cases in which the Court has invalidated delegations—involved broad delegations of power to “make federal crimes of acts that never had been such before.”²⁹ Thus, Congress must provide by statute that violation of the statute’s terms—or of valid regulations issued pursuant thereto—shall constitute a crime, and the statute must also specify a permissible range of penalties. Punishment in addition to that authorized in the statute may not be imposed by administrative action.³⁰

However, once Congress has exercised its power to declare certain acts criminal, and has set a range of punishment for violations, authority to flesh out the details may be delegated. Congress may provide that violation of valid administrative regulations shall be punished as a crime.³¹ For example, the Court has upheld a delegation of authority to classify drugs as “controlled substances,” and thereby to trigger imposition of criminal penalties, set by statute, that vary according to the level of a drug’s classification by the Attorney General.³²

Congress may also confer on administrators authority to prescribe criteria for ascertaining an appropriate sentence within the range between the maximum and minimum penalties that are set by statute. The Court upheld Congress’s conferral of “significant discretion” on the Sentencing Commission to set binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants.³³ Although the Commission was given significant discretionary authority “to determine the relative severity of federal crimes, . . . assess the relative weight of the offender characteristics listed by Congress, . . . to determine which crimes have been punished too leniently and which too severely, [and] which types of criminals are to be considered similar,” Congress also gave the Commission extensive guidance in the Act, and did not confer authority to create new crimes or to enact a federal death penalty for any offense.³⁴

ArtI.S1.6.2 Delegations of Foreign and Military Affairs to the President

That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was asserted in United States v. Curtiss-Wright Corporation.¹ There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice George Sutherland for the Court proclaimed that the President is largely free of the constitutional constraints imposed by the nondelegation doctrine when he acts in foreign affairs.² Sixty years later, the Court, relying on Curtiss-Wright, reinforced such a distinction in a case involving the President’s authority over military justice.³ Whether or not the President is the “sole organ of the nation” in its foreign relations, as asserted in Curtiss-Wright,⁴ a lesser standard of delegation is applied in areas of power shared by the President and Congress.

Superintendence of the military is another area in which shared power with the President is impacted by the delegation doctrine. The Court in Loving v. United States⁵ approved a virtually standardless delegation to the President.

Article 118 of the Uniform Code of Military Justice (UCMJ)⁶ provides for the death penalty for premeditated murder and felony murder for persons subject to the Act, but the statute does not comport with the Court’s capital punishment jurisdiction, which requires the death sentence to be cabined by standards so that the sentencing authority must narrow the class of convicted persons to be so sentenced and must justify the individual imposition of the sentence.⁷ However, the President in 1984 had promulgated standards that purported to supply the constitutional validity the UCMJ needed.⁸

The Court in Loving held that Congress could delegate to the President the authority to prescribe standards for the imposition of the death penalty—Congress’s power under Article I, § 8, cl. 14, is not exclusive—and that Congress had done so in the UCMJ by providing that the punishment imposed by a court-martial may not exceed “such limits as the President may prescribe.”⁹ Acknowledging that a delegation must contain some “intelligible principle” to guide the recipient of the delegation, the Court nonetheless held this not to be true when the delegation was made to the President in his role as Commander in Chief. “The same limitations on delegation do not apply” if the entity authorized to exercise delegated authority itself possesses independent authority over the subject matter. The President’s responsibilities as Commander in Chief require him to superintend the military, including the courts-martial, and thus the delegated duty is interlinked with duties already assigned the President by the Constitution.¹⁰

ArtI.S1.6.3 States and Legislative Power Delegations

Beginning in the Nation’s early years, Congress has enacted hundreds of statutes that contained provisions authorizing state officers to enforce and execute federal laws.¹ Challenges to the practice have been uniformly rejected. Although the Court early expressed its doubt that Congress could compel state officers to act, it entertained no such thoughts about the propriety of authorizing them to act if they chose.² When, in the Selective Draft Law Cases,³ the contention was made that the 1917 statute authorizing a military draft was invalid because of its delegations of duties to state officers, the argument was rejected as “too wanting in merit to require further notice.” Congress continues to empower state officers to act.⁴ Presidents who have objected have done so not on delegation grounds, but rather on the basis of the Appointments Clause.⁵

ArtI.S1.6.4 Quasi-Governmental Entities and Legislative Power Delegations

To define what constitutional limits could apply if Congress delegates authority to another entity to perform specified functions and duties, the Supreme Court has said that that it must first determine whether the entity in question is a private or governmental entity. The Court applies varying levels of scrutiny to a delegation depending on whether the delegation is made to a governmental, private, or quasi-governmental entity. For governmental entities such as federal agencies, the Court applies the lenient “intelligible principle” standard.¹

The Court has held that a provision of a statute that states an entity is either a private or governmental entity is not dispositive for constitutional purposes.² While certain entities such as federal agencies can be readily characterized as governmental entities,³ the distinction between a public and a private entity is often unclear for government-created or government-appointed entities.⁴ Nondelegation challenges involving quasi-governmental entities highlight “the judiciary’s unsettled approach to analyzing the constitutional status of ‘boundary agencies’ that sit at the public-private border.”⁵

The Supreme Court has examined the following factors to determine whether government-created entities⁶ with varying degrees of governmental involvement and oversight are private or governmental entities:

• ownership and corporate structure;

• day-to-day management;

• statutory goals;

• political branches’ supervision over the entities’ priorities and operations; and

• federal financial support.⁷

These factors arose from two Supreme Court decisions involving the status of Amtrak, a federally chartered corporation. In its 1995 decision in Lebron v. National Railroad Passenger Corp., the Supreme Court held that Amtrak “is an agency or instrumentality of the United States” for purposes of a First Amendment challenge.⁸ After reviewing Amtrak’s history and operations, the Court concluded that when the “Government creates a corporation [such as Amtrak] by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.”⁹

Twenty years later, the Supreme Court affirmed Amtrak’s status as a governmental entity in a case involving nondelegation and Appointments Clause challenges. In Department of Transportation v. Association of American Railroads,¹⁰ the Court relied on its analysis in Lebron to determine whether Amtrak was a governmental or private entity. The Association of American Railroads filed suit alleging that the Passenger Rail Investment and Improvement Act of 2008 unconstitutionally delegated authority to Amtrak to set certain standards.¹¹ The Court concluded that Amtrak was a governmental entity because the “political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget.”¹² The Court did not explain the relative importance of the various factors in the Amtrak test, concluding that the “combination of these unique features and [Amtrak’s] significant ties to the Government” established that it was not a private entity but a governmental entity that “was created by the Government, is controlled by the Government, and operates for the Government’s benefit.”¹³ The Court did not reach the issue of whether the delegation of power given to Amtrak over its competitors violates the Due Process Clause or the nondelegation doctrine.¹⁴

Because case law on the threshold question of whether an entity is a private or governmental entity is limited and fact-dependent, it is difficult to conclude with any certainty how the Supreme Court would apply the Amtrak test with respect to other government-created corporations or other entities performing government functions.¹⁵ In addition to nondelegation concerns, the growth of quasi-governmental entities¹⁶ could also raise due process and other constitutional concerns.¹⁷

ArtI.S1.6.5 Private Entities and Legislative Power Delegations

In contrast to the relative latitude given to delegations to other branches of the government under the “intelligible principle” standard,¹ the Supreme Court has limited the types of authority and functions that Congress can delegate to a purely private entity.² The seminal case addressing delegations to a private entity is Carter v. Carter Coal Co.³ In Carter Coal, the Supreme Court invalidated the Bituminous Coal Conservation Act of 1935, a law that granted a majority of coal producers and miners in a given region the authority to impose maximum hour and minimum wage standards on all other miners and producers in that region.⁴ The Court reasoned that by conferring on a majority of private individuals the authority to regulate “the affairs of an unwilling minority,” the law was “legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.”⁵ The Court did not apply the “intelligible principle” standard, but instead focused on the regulatory and “coercive” power given to private entities over its competitors and the due process concerns raised by such delegations.⁶

Although Carter Coal concerned the delegation of authority to private entities and not governmental bodies, some courts and commentators have suggested that the Carter Coal decision may more accurately be viewed as a due process case.⁷ The Fifth Amendment’s Due Process Clause prohibits the Federal Government⁸ from depriving any person of “life, liberty, or property without due process of law,”⁹ which the Court has interpreted as establishing certain principles of fundamental fairness, including the notion that decision makers must be disinterested and unbiased.¹⁰ In striking down the delegation to coal producers and miners to impose standards on other producers and miners, the Supreme Court in Carter Coal centered its analysis on the coercive power that the majority could exercise over the “unwilling minority.”¹¹ The opinion articulated the due process problems involved with providing regulatory authority to private entities, stating:

The difference between producing coal and regulating its production is, of course,

fundamental. The former is a private activity; the latter is necessarily a governmental

function, since, in the very nature of things, one person may not be entrusted with the

power to regulate the business of another, and especially of a competitor. And a statute

which attempts to confer such power undertakes an intolerable and unconstitutional

interference with personal liberty and private property. The delegation is so clearly

arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the

Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court

which foreclose the question.¹²

The Court’s reasoning in Carter Coal suggests that delegating authority to coal producers and miners to impose standards on its competitors is in tension with both the nondelegation doctrine and the Due Process Clause.¹³

After its Carter Coal decision, the Supreme Court did not comprehensively ban private involvement in regulation. In the context of private parties aiding in regulatory functions and decisions, the Court has indicated that Congress may empower a private party to play a more limited and supervised role in the regulatory process. For example, in Currin v. Wallace,¹⁴ the Court upheld a law that authorized the Secretary of Agriculture to issue a regulation respecting the tobacco market, but only if two-thirds of the growers in that market voted for the Secretary to do so.¹⁵ In distinguishing Carter Coal, the Court stated that “this is not a case where a group of producers may make the law and force it upon a minority.”¹⁶ Rather, it was Congress that had exercised its “legislative authority in making the regulation and in prescribing the conditions of its application.”¹⁷

Similarly, in Sunshine Anthracite Coal Co. v. Adkins,¹⁸ the Supreme Court upheld a provision of the Bituminous Coal Act of 1937,¹⁹ which authorized private coal producers to propose standards for the regulation of coal prices.²⁰ Those proposals were provided to a governmental entity, which was then authorized to approve, disapprove, or modify the proposal.²¹ The Court approved this framework, heavily relying on the fact that the private coal producers did not have the authority to set coal prices, but rather acted “subordinately” to the governmental entity (the National Bituminous Coal Commission).²² In particular, the Sunshine Anthracite Court noted that the Commission and not the private industry entity determined the final industry prices to conclude that the “statutory scheme” was “unquestionably valid.”²³

In the same vein as Carter Coal, the Supreme Court in Currin and Sunshine Anthracite did not evaluate whether Congress laid out an “intelligible principle” guiding the delegations to the private entities. Rather than applying the “intelligible principle” standard, the Court reviewed whether the responsibilities given to the private entities were acts of legislative or regulatory authority.²⁴ In these nondelegation cases involving private entities, the Court drew the “line which separates legislative power to make laws, from administrative authority” to administer laws.²⁵ In both Currin and Adkins, the Court reasoned that the private entities did not exercise legislative power because they did not impose or enforce binding legal requirements.²⁶ Because the private entity’s responsibilities were primarily administrative or advisory, the Court determined that the statutes did not violate the nondelegation doctrine.²⁷

ArtI.S1.6.6 Taxes and Delegations of Legislative Power Delegations

The Court has strongly implied that the same principles govern the validity of a delegation regardless of the subject matter of the delegation. “[A] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.”¹ Holding that “the delegation of discretionary authority under Congress’s taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges,” the Court explained in Skinner v. Mid-America Pipeline Company² that there was “nothing in the placement of the Taxing Clause” in Article I, § 8 that would distinguish it, for purposes of delegation, from the other powers enumerated in that clause.³ Thus, the test in the taxing area is the same as for other areas—whether the statute has provided the administrative agency with standards to guide its actions in such a way that a court can determine whether the congressional policy has been followed.

This does not mean that Congress may delegate its power to determine whether taxes should be imposed. What was upheld in Skinner was delegation of authority to the Secretary of Transportation to collect “pipeline safety user fees” for users of natural gas and hazardous liquid pipelines. “Multiple restrictions” placed on the Secretary’s discretion left no doubt that the constitutional requirement of an intelligible standard had been met. Cases involving the power to impose criminal penalties, described below, further illustrate the difference between delegating the underlying power to set basic policy—whether it be the decision to impose taxes or the decision to declare that certain activities are crimes—and the authority to exercise discretion in implementing the policy.

ArtI.S1.6.7 Individual Liberties and Delegations of Legislative Power

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.¹ 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.”² The standard practice of the Court has been to interpret the delegation narrowly so as to avoid constitutional problems.³

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.⁴