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 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 Company 2 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.
Crime and Punishment
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. 4 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. 5 Both Schechter 6 and Panama Refining 7 – 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.” 8 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. 9
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. 10 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. 11
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. 12 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. 13
Delegation and Individual Liberties
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. 14 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. 15 The standard practice of the Court has been to interpret the delegation narrowly so as to avoid constitutional problems. 16
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. 17