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

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

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

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

The modern doctrine may be traced to the 1928 case, J. W. Hampton, Jr. & Co. v. United States, in which the Court, speaking through Chief Justice Taft, upheld Congress’s delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries. ⁷ Although formally invoking the contingency theory, the Court's opinion also looked forward, emphasizing that in seeking the cooperation of another branch Congress was restrained only according to common sense and the inherent necessities of the situation. ⁸ This vague statement was elaborated somewhat in the statement that the Court would sustain delegations whenever Congress provided an intelligible principle to which the President or an agency must conform. ⁹

As characterized by the Court, the delegations struck down in 1935 in Panama Refining ¹⁰ and Schechter ¹¹ were not only broad but unprecedented. Both cases involved provisions of the National Industrial Recovery Act. At issue in Panama Refining was a delegation to the President of authority to prohibit interstate transportation of what was known as hot oil – oil produced in excess of quotas set by state law. The problem was that the Act provided no guidance to the President in determining whether or when to exercise this authority, and required no finding by the President as a condition of exercise of the authority. Congress declared no policy, . . . established no standard, [and] laid down no rule,” but rather “left the matter to the President without standard or rule, to be dealt with as he pleased. ¹² At issue in Schechter was a delegation to the President of authority to promulgate codes of fair competition that could be drawn up by industry groups or prescribed by the President on his own initiative. The codes were required to implement the policies of the Act, but those policies were so general as to be nothing more than an endorsement of whatever might be thought to promote the recovery and expansion of the particular trade or industry. The President’s authority to approve, condition, or adopt codes on his own initiative was similarly devoid of meaningful standards, and virtually unfettered. ¹³ This broad delegation was without precedent. The Act supplied no standards for any trade or industry group, and, unlike other broad delegations that had been upheld, did not set policies that could be implemented by an administrative agency required to follow appropriate administrative procedure. Instead of prescribing rules of conduct, [the Act] authorize[d] the making of codes to prescribe them. ¹⁴

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

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